Eames v. S. New Hampshire Hydro-Elec. Corp.

• Citation: 159 A. 128
• Parties: EAMES v. SOUTHERN NEW HAMPSHIRE HYDRO-ELECTRIC CORPORATION.
• Decision Date: 02 February 1932
• Court: New Hampshire Supreme Court

159 A. 128

EAMES

v. SOUTHERN NEW HAMPSHIRE HYDRO-ELECTRIC CORPORATION.

Supreme Court of New Hampshire. Coos.

Feb. 2, 1932.

Exceptions from Superior Court, Coos County; Burque, Judge.

Petition by Mary Eames for assessment of damages by a jury on appeal from an award by the Public Service Commission for the taking of a right of way across her land by the Southern New Hampshire Hydro-Electric Corporation. Verdict for plaintiff in excess of the award, and defendant corporation brings exceptions.

New trial.

Petition, for assessment of damages by a jury, under P. L. c. 244, § 6, on appeal from an award by the Public Service Commission for the taking by defendant of a right of way for its transmission line across the plaintiff's land situated in Northumberland. Trial by jury and verdict for the plaintiff in excess of the award. Exceptions were allowed the defendant, by Burque, J., to the exclusion of the questions, hereinafter numbered (1) to (6), addressed to the issue of the plaintiff's damages.

One White, who had had charge of the construction of said line, called by the defendant, was asked:

"Q. Are you familiar with the value of real estate in Northumberland for right of way purposes? A. I know what I have paid.

"Q. For other rights of way along this same line? A. Yes sir."

He further testified that he had purchased rights of way across property similar to the Eames property. Subject to the defendant's exception the following questions were excluded for want of qualification of the witness; namely: (1) "Q. Can you name other properties in the town of Northumberland similar to the Eames property over which the line was constructed? (2) Q. * * * Will you tell the jury the fair value of the damages to the Eames property by reason of the construction of this transmission line over it?" The witness was then allowed to testify that he was "familiar with the values of similar rights of way over property in the town of Northumberland," following which, subject to exception, the following question was excluded; namely: (3) "Q. Now, basing your opinion of your value on the values of similar rights of way over similar properties, will you tell the jury what the damages to the Eames property is by reason of the construction of this line thereon?"

One Ordway, local manager of the company, called by the defendant, testified that he had bought rights of way in "the north country" for transmission line purposes; that he was familiar with prices paid to adjoining landowners for rights of way across their property for this same transmission line, and with the prices paid for such rights across property similarly located and similar in nature to the Eames property, in the town of Northumberland. Subject to exception, the following question was then excluded for want of qualification of the witness; namely: (4) "Q. Basing your opinion upon that, will you give the jury your estimate or opinion as to the damages to the Eames property by reason of the construction of this pole line across it?" The witness was then allowed to testify that he knew the prices which were paid for similar rights of way across similar property for the same purpose in the town of Northumberland, following which, subject to exception, the following question was excluded: (5) "Q. Well, will you state those? * * *"

The defendant also excepted (6) to the Tilling of the court upon the following colloquy; namely: "Mr. Burns: Do we understand the court excludes any evidence as to the prices which this company paid to others in the town of Northumberland for similar rights of way across property similarly located? The Court: Yes, as a matter of discretion; on the ground that we are trying too many cases."

Henry A. Dodge, of Littleton, for plaintiff.

Hughes & Burns, of Dover, and Edmund Sullivan, of Berlin, for defendant.

SNOW, J.

The first four exceptions were to the exclusion of opinion evidence for the want of qualification of the proffered witnesses. Their proven knowledge was of sales to the defendant of like rights of way over similar lands in Northumberland made about the same time. The last two exceptions were to the exclusion of direct proof of such sales, offered as evidence of the market value of the right taken. As we interpret the record, all sales relied upon for either purpose were to the condemnor. If sales to others were intended, it is not made clear.

It will simplify the solution of the questions presented if we consider the law, and its application, governing (I) the admissibility of the sales of other property, as evidence of the value of the property in question, when made (1) to strangers and (2) to the condemnor, and (II) the admissibility of opinion evidence based upon knowledge of such sales.

I. (1) While no infallible standard of the value of real estate has been found, we are accustomed to regard actual sales of similar property under like conditions as affording a fair criterion. March v. Railroad, 19 N. H. 372, 377. Accordingly, when the value of property is in issue, it has been the practice in this state to receive evidence of the price at which other property of like character and condition was sold in the vicinity at or about the time in question. Amoskeag Mfg. Co. v. Worcester, 60 N. H. 522, 525; Haines v. Insurance Co., 52 N. H. 467, 469; Hoit v. Russell, 56 N. H. 559, 563; Carr v. Moore, 41 N. H. 131, 133: Ferguson v. Clifford, 37 N. H. 86, 104; White v. Railroad, 30 N. H. 188, 208; Concord R. R. v. Greely, 23 N. H. 237, 242; Thornton v. Campton, 18 N. H. 20, 25. Whether evidence of a particular sale is admissible in proof of the value of the land in issue involves the joint application of two leading principles, one of evidence and the other of practical expediency; namely, the principle of relevancy and the principle of auxiliary probative policy. According to the former, the. value or sales price of the property is irrelevant, unless such property is substantially similar in condition to the property in question; according to the second, it may be excluded, although relevant, if it involves in the case in hand a disproportionate confusion of issues and loss of time. Wig. Ev. 463. See Gerry v. Neugebauer, 83 N. H. 23, 26, 136 A. 751. In this jurisdiction the 'determination of each of these issues presents a preliminary question of fact for the trial court, and its finding is final, if there is any evidence upon which it can be made. Cross v. Wilkins, 43 N. H. 332, 334; Kelsea v. Fletcher, 48 N. H. 282, 284; Haines v. Insurance Co., supra, 52 N. H. 468, 469; Hoit v. Russell, supra, 56 N. H. 563; Amoskeag Mfg. Co. v. Head, 59 N. H. 332, 337, 338; Amoskeag Mfg. Co. v. Worcester, supra, 60 N. H. 525.

(2) While the practice, prevailing here, of admitting evidence of the sale of other similar property in the neighborhood made about the same time, is generally approved by the authorities (Lewis, Em. Dom. [3d Ed.] 662), and is followed in nearly all jurisdictions (Nicholas, Em. Dom. [2d Ed.] 455), the courts of the other states, with nearly like unanimity, exclude evidence of the prices paid for such other properties when the purchases are by the condemning party (Lewis, Em. Dom. § 667; Nicholas, Em. Dom. § 456; Curley v. Jersey City, 83 N. J. Law, 760, 85 A. 197, 43 L. R. A. [N. S.] 985). The reasons generally given in support of this view are that, since the buyer must have the property and the seller may be compelled to part with it, such sales are not made in an open market, but are in the nature of a compromise to avoid the expense, vexation, delay, and inconvenience of litigation; and that therefore the prices paid can afford no guide to a jury in appraising the value of the property in question. In other words, the theory of the courts holding to this doctrine is that the prices paid by a condemnor can have no probative worth in fixing market values, and hence are irrelevant and inadmissible as a matter of law.

The contrary view has been taken in this jurisdiction. In Concord R. R. v. Greely, supra, an instruction was sustained "that the prices paid by the corporation to other land owners had some tendency to prove what Greely ought to have." Such also was the implied holding in Amoskeag Mfg. Co. v. Head, 59 N. H. 332, 338; Amoskeag Mfg. Co. v. Worcester, 60 N. H. 522, 524, 525. To the same effect is Curley v. Jersey City, 83 N. J. Law, 760, 85 A. 197, 43 L. R. A. (N. S.) 985. See Holmes, C. J., in O'Malley v. Commonwealth, 182 Mass. 196, 65 N. E. 30.

To us, the basic error in the majority view appears to be in the assumption on which it is founded. While it may be conceded that the price paid by a condemnor is often affected, either by his necessity or by the compelling power of eminent domain upon the seller, such a result does not necessarily follow. For instance, it may affirmatively appear that the sales price was the asking price of the seller, and that it was neither a compromise nor the result of any oppressive influence. Such was the fact and finding in Curley v. Jersey City, supra, 760 of 83 N. J. Law, 85 A. 197. Again, if it be shown that the price paid agrees with that at which other similar properties passed between parties who were strangers to the condemnation proceedings, no reasonable person could say that evidence of it would not contributorily confirm the market character of such price. Such was the case and holding in Spokane, etc., Ry. Co. v. Lieuallen, 3 Idaho, 381, 383, 29 P. 854. Other situations where the assumption of the majority view fails may readily be conceived. In other words, it is quite possible that the negotiations for the sale will demonstrate its voluntary character and therefore its probative worth as evidence. Ferguson...