First Baptist Church of Maxwell v. State, Dept. of Roads

• Decision Date: 18 June 1965
• Docket Number: No. 35920,35920
• Citation: 135 N.W.2d 756,178 Neb. 831
• Parties: FIRST BAPTIST CHURCH OF MAXWELL, Nebraska, Appellee-Cross-Appellant, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellant-Cross-Appellee.
• Court: Nebraska Supreme Court

Page 756

135 N.W.2d 756

178 Neb. 831

FIRST BAPTIST CHURCH OF MAXWELL, Nebraska, Appellee-Cross-Appellant, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellant-Cross-Appellee.

No. 35920.

Supreme Court of Nebraska.

June 18, 1965.

Syllabus by the Court

1. Ordinarily, a resident owner who is familiar with his property and knows its worth may testify as to its value without further foundation.

2. Mere membership in a church or an organization does not bring a lay witness into such relationship with property that he may testify as to its value without further foundation.

3. As a general rule, a witness need not be an expert to testify as to the value of land. The admission of such testimony rests in the sound discretion of the court.

4. A witness' testimony as to value is ordinarily received if he shows an acquaintance with the property and is informed as to the state of the market.

5. Mere familiarity with the physical structure and location of the property is not sufficient foundation to render a lay witness competent to testify as to valuation.

6. Testimony as to the cost of property or as to the cost of remodeling property 8 to 14 years prior to the time of the taking is not competent evidence of market valuation because of its remoteness in point of time.

7. Where there is no market value of property with a specialized use, such as a church, convent, hospital, college premises, or the like, the general rule is that resort may be had to some other method of fixing the value of the property.

Clarence A. H. Meyer, Atty. Gen., Harold S. Salter, Asst. Atty. Gen., Warren D. Lichty, Jr., James F. Petersen, Sp. Asst. Attys. Gen., Lincoln, for appellant.

Leonard P. Vyhnalek, Beatty & Morgan, North Platte, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

WHITE, Chief Justice.

This is an action in eminent domain against a church property in Maxwell, Nebraska. In order to straighten a state highway that formerly jogged at right angles, the State condemned one-half of the church parking lot (80 feet X 148 feet), so that the new road ran diagonally from the northwest corner to the southeast corner of the lot. The church was located on a lot of the same size and immediately to the west. The church also owned a lot immediately to the south of the one from which the diagonal strip was taken. The taking was on March 18, 1961. The amount of land actually taken was 0.14 acres. About 10 cars could be parked in the lot after the taking and about 28 before the taking. The jury found the value of the diagonal strip taken as $200 and found the difference in value of the remainder before and after the taking as $10,750. The court made the computation from the special findings of the jury and entered judgment for $10,950. The State appeals. The sole question presented on appeal is the sufficiency of foundation and the competency of two of the church's witnesses, Frank Christensen and Loren Hall.

Christensen and Hall are both lay witnesses, are long-time members of the church, and are farmers living near Maxwell. Christensen had been an officer of the church. The church is situated in the village of Maxwell, was built in 1905, was originally a cement block structure, was remodeled between the years 1947 to 1953, and both Christensen and Hall helped in the remodeling. The building was extended to the south, new floors were installed, the outside was finished in brick veneer, and other changes were made. Christensen, over objection, testified as to the cost of remodeling as being $44,281.06 between the years 1947 and 1953. Both Christensen and Hall attend church and are familiar with the physical structure of the property. There is no evidence in the record that they are acquainted with the state of the real estate market, or with the market value of properties in the vicinity, or have any further foundation for their testimony, other than their membership and familiarity with the property. Hall was not interrogated as to whether he had a knowledge of real estate or market values of property in the area, and Christensen, when asked if he kept track generally of values, answered, 'Not very much.' There is no evidence that either Christensen or Hall were property owners.

We have said many times that a resident owner who is familiar with his property and knows its worth may testify as to value without further foundation. Lansman v. State, 177 Neb. 119, 128 N.W.2d 569; Missouri Pacific Ry. Co. v. Coon, 15 Neb. 232, 18 N.W. 62; Johnson v. City of Lincoln, 174 Neb. 837, 120 N.W.2d 297; Chicago, R. I. & P. Ry. Co. v. Buel, 56 Neb. 205, 76 N.W. 571; Schmailzl v. State, 176 Neb. 617, 126 N.W.2d 821.

Membership in the church does not bring these witnesses into a relationship with the property so they may testify as to valuation without foundation. An officer or president of a corporation is not an owner of property belonging to the corporation in the sense of the word when applied to an individual owner. There is no presumption in his favor as in the case of an individual owning property, and in order to qualify he must be shown to be familiar with the property and have such a knowledge as to qualify him to testify because of his knowledge of values generally in the vicinity. Omaha Loan & Trust Co. v. Douglas County, 62 Neb. 1, 86 N.W. 936. We come to the conclusion that membership in the church does not qualify them to testify as to the value of the church without further foundation.

Our cases have permitted considerable latitude in the admission of lay testimony as to valuation. See, Medelman v. Stanton-Pilger Drainage Dist., 155 Neb. 518, 52 N.W.2d 328; Wahlgren v. Loup River Public Power Dist., 139 Neb. 489, 297 N.W. 833; Johnson v. City of Lincoln, supra. But, a jury verdict in an eminent domain case may not be based on conjecture and speculation derived from opinion evidence as to valuation without any foundation. It is clear that some foundation must be laid for a lay witness to testify and his opinion must have some basis on which he can make an intelligent estimate of the value of the property. This, generally, as appellee points out, must be based on his knowledge of the property and his knowledge of values.

The proper rules are comprehensively stated in Evans v. State, 176 Neb. 156, 125 N.W.2d 541, as follows: 'It is the general rule that a witness need not be an expert to testify to the value of land. Market value is not a question of science or skill upon which experts alone may give an opinion. Illinois Power & Light Corp. v. Talbott, 321 Ill. 538, 152 N.E. 486. It is necessary only to show that he has the means of forming an intelligent opinion derived from an adequate knowledge of the nature and kind of property in controversy, and of its value. City and County of Denver v. Lyttle, 106 Colo. 157, 103 P.2d 1. It is not essential that every witness expressing an opinion shall have all-inclusive information of every detail of the elements entering into the value. Lebanon & Nashville Turnpike Co. v. Creveling, 1549 Tenn. 147, 17 S.W.2d 22, 65 A.L.R. 440. It is most difficult to state an all-inclusive rule fixing the qualification of witnesses to give their opinions as to the market value of land. Their testimony is ordinarily received if they show an acquaintance with the property and are informed as to the state of the market, the weight and credibility of their evidence being for the jury. Langdon v. Loup River Public Power Dist., 144 Neb. 325, 13 N.W.2d 168; Beebe & Runyan Furniture Co. v. Board of Equalization, 139 Neb. 158, 296 N.W. 764; 1 Orgel on Valuation Under Eminent Domain (2d Ed.), ss. 132 and 135, pp. 564 and 580...