Humphries v. State Highway Commission

• Decision Date: 08 June 1968
• Docket Number: No. 45083,45083
• Citation: 201 Kan. 544,442 P.2d 475
• Parties: In the Matter of the Condemnation Appeal of Jack M. HUMPHRIES and Virginia L. Humphries, Appellants, v. The STATE HIGHWAY COMMISSION of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 475

442 P.2d 475

201 Kan. 544

In the Matter of the Condemnation Appeal of Jack M. HUMPHRIES and Virginia L. Humphries, Appellants, v. The STATE HIGHWAY COMMISSION of Kansas, Appellee.

No. 45083.

Supreme Court of Kansas.

June 8, 1968.

Syllabus by the Court

1. Generally speaking, it is proper cross-examination to inquire into matters which were the subject of the witness' direct testimony or material or relevant thereto.

2. Parties to an eminent domain proceeding have the right to adopt their own theory as to the highest and best use of the land taken and each may introduce evidence without being bound by the theory of the other.

3. Questions concerning the admissibility of evicence will not be considered for the first time on appeal in the absence of a timely objection, or where objection is made, which does not clearly state the specific grounds thereof. (K.S.A. 60-404.)

4. A jury verdict in an eminent domain proceeding awarding damages for the taking of the landowners' property in an amount greater than the lowest damages testified to and less than the highest damages testified to is totally consistent with the evidence.

5. The record in an eminent domain proceeding is considered, and it is held: The district court did not err in the admission of evidence, and the verdict of the jury was well within the range of the testimony of the witnesses.

Clinton C. Marker, Topeka, argued the cause, and Terrence S. Leek, Topeka, was with him on the brief for appellants.

James D. Waugh, Topeka, argued the cause, and David Craig, Robert L. Webb, Ralph W. Oman, Philip E. Buzick, William B. McElhenny, James L. Grimes, Jr., Donald J. Horttor, Terry L. Bullock, Topeka, and John H. Morse, Asst. Atty. Gen., were with him on the brief for appellee.

FATZER, Justice.

The landowners have appealed from an award of a jury in an eminent domain proceeding and contend the district court erred in the admission of evidence, and that the verdict was grossly inadequate and contrary to the evidence.

In early 1962, the landowners purchased a short '80' consisting of 76 acres for $13,500. The property was unimproved and is located approximately eight miles south of Topeka on the east side of U.S. Highway 75. In February, 1962, the landowners caused extensive improvements to be made on the front or west side of the property, consisting of a livestock sales barn and holding pens. The sales barn has a seating capacity of 350 persons and a restaurant for customers. In September, 1962, the first livestock sale was held and sales were thereafter regularly conducted.

On September 20, 1965, the State Highway Commission condemned a 9 1/2 acre controlled access right of way easement for highway purposes across the landowners' property, leaving 45 acres east of the right of way and 22 1/2 acres west of it. The 22 1/2-acre tract contained all the sale barn improvements, none of which were taken. Access to the back 45-acre tract will be provided the landowners by means of a tunnel or underpass on a township road bordering the south edge of the property.

In the original condemnation proceeding, the appraisers appointed by the court awarded the landowners $15,500. The landowners appealed the award to the district court and the case was tried to a jury which was permitted to view the premises, and it returned a verdict in favor of the landowners in the amount of $23,400.

Prior to the commencement of the trial, a conference was held in the judge's chambers. The judge and counsel for the respective parties were present. A part of the conference revolved around the issue whether the court would permit evidence of the cost of the land when purchased in 1962. When the conference concluded, the court stated:

'* * * I just feel that under the circumstances here when we talk about $13,000 (sic) which included the same land that now has improvements in 1965 I don't think it has any relevancy in the case and that will be the order. I'll let you inquire whether or not they considered it; I'm not going to allow anybody to go into the price paid for it.'

Landowner Jack Humphries testified on direct examination that the improvements cost $81,895.43 in 1962, and could be replaced for $125,000; that the total value of the property just prior to the taking was $192,500 and that the value of the property remaining after the taking was $37,000. While being cross-examined by counsel for the commission, the following dialogue occurred:

'Q. You said that the selling price of the property along the highway is about $600 an acre in that area?

'A. I think that would be real close.

'Q. When did you buy this property?

'A. In 1962.

'Q. Did it sell for that much?

'A. No sir, it did not.

'Q. How much did it sell for?

'MR. SNYDER: I am going to object in that it has been determined--

'THE COURT: I think as far as his cost it wouldn't be a comparable sale, but since he has gone into the investment of the land, I am going to permit him to answer this but it would not be a comparable sale, because of the improvements that have been added.

'MR. SNYDER: All right, if we can have instructions on that.

'THE COURT: It is not a comparable sale, but he may go into it, since Mr. Humphries did open the investment that he has there.

'Q. What did you pay for this land, Mr. Humphries?

'A. I paid $13,500.00.

'Q. That was between 75 and 80 acres there?

'A. The entire thing.'

The landowners contend the district court erred in overruling their objection to the price paid for the land in 1962. The landowners' testimony with respect to the improvements made was proper and relevant since they were made at a time which was not too remote to the condemnation in 1965, and the investment testified to by Mr. Humphries was of some probative value to establish market value. In Urban Renewal Agency of Wichita, Kansas, Metropolitan Area v. Tate, 196 Kan. 654, 414 P.2d 28, it was said:

'The jury is entitled to take into consideration the facts testified to by the witness as to the cost, quality and condition of the property * * *' (1. c. 658, 414 P.2d 1. c. 31).

The ultimate fact to be established by the line of questioning pursued by counsel for the commission was not the value of improvements alone, but the value of the entire property, which included the improvements and the land itself. In establishing just compensation, it was necessary that the evidence establish the value of the entire property before the taking. (K.S.A. 26-513 (c).) The investment in the entire property was a proper factor to be considered in arriving at the value. Since the landowner introduced evidence of his investment in the improvements, it was proper on cross-examination for the commission to show his investment in the land in order to present the whole picture. To illustrate, the landowner testified that the improved land had a value of $192,500 and that the improvements had a replacement value of $125,000 prior to condemnation. Applying the cost approach formula of valuation of improved property which he used, the difference between these two figures would be $67,500 which obviously represented the value of the raw 76 acres, or approximately $890 per acre. It was proper in testing the landowner's credibility to show he paid $13,500, or about $180 per acre, three years prior to the condemnation for the unimproved land.

The rule is well settled that it is proper cross-examination to inquire into matters which were the subject of the witness' direct testimony. This court has, as have other American courts, recognized the rule that cross-examination must be responsive to testimony given on direct examination or material or relevant thereto. (State ex rel. v. Creager, 97 Kan. 334, 340, 155 P. 29; State v. Harris, 103 Kan. 347, 350, 175 P. 153; Maechtlen v. Clapp, 121 Kan. 777, 783, 250 P. 303; State v. Roth, 200 Kan. 677, 438 P.2d 58.) In Schuster, Tootle & Co. v. Stout & Wingert, 30 Kan. 529, 2 P. 642, it was said:

'* * * Generally speaking, a cross-examination should be permitted as to all matters developed in the direct examination * * *' (1. c. 531, 2 P. 1. c. 643.)

See, also, Lawder v. Henderson, 36 Kan. 754, 14 P. 164; City of Atchison v. Rose, 43 Kan. 605, 23 P. 561; Reeves & Co. v. Brown, 80 Kan. 292, 102 P. 840, anc Seifert v. Schaible, 81 Kan. 323, 105 P.529. The rule is stated in 58 Am.Jur., Witnesses, § 632, p. 352, as follows:

'The application of the American rule is sometimes attended with considerable difficulty, because it is not always easy to determine what is within and what is without the scope of the direct examination. Therefore, much is necessarily left to the sound discretion of the trial court in determining what is proper cross-examination, this being especially true where both sides of the case stand in part upon common territory, or are founded in part upon the same or cognate facts. Generally speaking, however, when the direct examination opens a general subject, the cross-examination may go into any phase, any may not be restricted to mere parts which constitute a unity, or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief by the witness on cross-examination.'

The appellant cites Love v. Common School District, 192 Kan. 780, 391 P.2d 152, as authority for the rule that the value of property two or three years prior to taking is not competent to establish value as of the date of the taking. The rule is sound and we do not depart from it, but it does not dispose of the question before the court. In Love a county employee was the sole witness used by the...