Morgan v. City of Overland Park, 46187

• Decision Date: 10 April 1971
• Docket Number: No. 46187,46187
• Citation: 483 P.2d 1079,207 Kan. 188
• Parties: Howard M. MORGAN and Grace L. Morgan, Appellees, v. The CITY OF OVERLAND PARK, Kansas, a Municipal Corporation, Appellant.
• Court: Kansas Supreme Court

Page 1079

483 P.2d 1079

207 Kan. 188

Howard M. MORGAN and Grace L. Morgan, Appellees, v. The CITY OF OVERLAND PARK, Kansas, a Municipal Corporation, Appellant.

No. 46187.

Supreme Court of Kansas.

April 10, 1971.

Syllabus by the Court

1. Under the rules of evidence, K.S.A. 60-401 et seq., an expert witness, on direct examination, may testify as to the purchase price of specific tracts of neighboring land in a condemnation proceeding.

2. Once a witness has qualified as an expert, a court cannot regulate the factors he uses or the mental process by which he arrives at his conclusion. These matters

can only be challenged by cross-examination testing the witness' credibility.

3. The responsibility of defining the extent of compensable rights is in the courts and if it is established that value testimony was based on noncompensable items or the credibility of the testimony is otherwise destroyed the testimony should be stricken in response to a proper motion.

4. In a condemnation proceeding, testimony as to the most advantageous use of land must not be speculative or conjectural and the uses which may be considered must have been so reasonably probable as to have an effect on the market value of the land at the time of the taking.

5. It is a general rule that although an ordinance may prohibit the use of the property for certain purposes at the time of condemnation, yet if there is a reasonable probability that the ordinance may be changed or an exception made, the value for that purpose as affected by the existing ordinance may be considered.

6. Under the provisions of K.S.A. 26-502, the only obligation as to parties insofar as the condemner is concerned is to name in the petition the owners and all lienholders of record and the name of any party in possession.

Donald C. Amrein, Mission, argued the cause and was on the brief for appellant.

George A. Lowe, of Lowe, Lowe & Lowe, Olathe, argued the cause and was on the brief for appellees.

HATCHER, Commissioner.

This is an appeal from a judgment rendered on a jury verdict in a condemnation proceeding.

The appellant, the city of Overland Park, Kansas, through eminent domain proceedings, acquired approximately twelve acres of land of the appellees for a municipal park. About six acres of this tract was covered by a lake or pond. Both parties appealed from the award of the appraisers. The matter was tried to a jury resulting in a verdict very substantially increasing the award. The facts will be presented in more detail as we discuss the issues to which they apply.

The appellant first complains that the trial court erred in admitting as an exhibit a map depicting other sales of land without a showing that such tracts were comparable to the landowners' tract, and in admitting testimony about such sales for the same reason.

The map designated as Exhibit 7 was prepared by one of appellees' expert witnesses. He testified:

'In making my appraisal, I used the market data approach, which is the study of other sales of property in the immediate area of the Morgan tract. Exhibit 7 is a map I made of the market data studies showing the location of properties and the sales of properties that I thought were relevant to this property. * * *

* * *

* * *

'* * * I secured all of this material in order to determine in my own mind what I thought this property was worth based on the study of the market, and this is the best basis of comparison that we possibly have, is what the similar properties in the immediate area sell for. * * * These sales that I show are all sales of vacant land and are not sales of improved properties.'

The witness then designated ten properties which had been sold in the vicinity of the land in question. He gave the size of the tracts, the location, date of sale and sale price. The tracts varied in size from one-third acre to thirty-five acres. The sales ranged in time from 1961 to 1966. The witness testified further:

'Q. All right. Are those sales representative enough to you that they actually do give you a solid basis on which to form an opinion of the value of the Morgan tract in February, 1966?

'A. I always make up a map like this for my own study so that I can get the relationship of the sales to the subject property, and I think that fits into a very positive pattern around this property, as to its logic for rezoning for apartments and the pattern as to sale prices. It is always some variance in sales, but they show a pattern that lead me to believe the value I established.'

We find no basis for the appellant's complaint. In City of Wichita v. Jennings, 199 Kan. 621, 433 P.2d 351, we held:

'Under the rules of evidence, K.S.A. 60-401, et seq., an expert witness, on direct examination, may testify as to the purchase price of specific tracts of neighboring land in a condemnation proceeding.' (Syl. 4.)

It was stated in the opinion:

'As all exclusionary rules were wiped out and none were reinstated as to the use of the purchase price of a specific tract of neighboring land to prove value, we are forced to conclude that the legislature intended to do away with the exclusion.

'It must be understood, however, that such evidence must present the purchase price of a sale of comparable land which was not so remote as to time and distance as to be irrelevant. The determination of this fact is to be left to the sound discretion of the trial court. Most of such factors go more to the weight to be given the testimony than its admissibility.' (p. 625, 433 P.2d at p. 355.)

The expert's opinion of value is the primary evidence under submission to the jury. Sales of comparable properties are offered in condemnation cases more often as supportive of the reasoning by which the expert arrives at his opinion rather than a direct indicia of value. In the recent case of City of Bonner Springs v. Coleman, 206 Kan. 689, 481 P.2d 950, we state:

'It must also be understood that once a witness has qualified as an expert, a court cannot regulate the factors he uses or the mental process by which he arrives at his conclusion. These matters can only be challenged by cross-examination testing the witness' credibility.' (p. 695, 481 P.2d at p. 955.)

It must also be understood, however, that the responsibility of defining the extent of compensable rights is in the courts and if it is established that value testimony was based on noncompensable items or the credibility of the testimony is otherwise destroyed the testimony should be stricken in response to a proper motion.

In Sacramento, etc. Drainage Dist. ex rel. State Reclamation Bd. v. Reed, 215 Cal.App.2d 60, 29 Cal.Rptr. 847, we find the rule stated as follows:

'* * * A condemnation trial is a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner. (See Kratovil and Harrison, Eminent Domain-Policy and Concept, 42 Cal.L.Rev. 596, 626.) There is a limit to imaginative claims even when described in terms of a prospective buyer's mental reactions. To say that only the witness' valuation opinion has probative value, that his 'reasons' have none, ignores reality. His reasons may influence the verdict more than his figures. To say that all objections to his reasons go to weight, not admissibility, is to minimize judicial responsibility for limiting the permissible arena in condemnation trials. The responsibility for defining the extent of compensable rights is that of the courts. * * *' (p. 69, 29 Cal.Rptr. at p. 853.)

The same rule would apply to appellant's suggestion that the expert witness should not have been permitted to adjust the sale price of other lands considered to reflect price increase.

The appellant's next four contentions are closely related and may be combined.

The appellant contends that the court erred in admitting an exhibit and testimony in connection therewith, the exhibit being an architectural rendition of a five story, sixty-three foot high apartment building when on the date of the taking the maximum height permitted by the zoning ordinance was two and one-half stories, thirty-five feet high; the court should have directed a verdict in favor of appellant as all of the appellees' evidence as to highest and best use was based on a five story apartment building, and the court failed to properly instruct the jury under the circumstances.

We will first consider the instruction and the law applicable to the issues presented.

The trial court instructed the jury as follows:

'In arriving at the fair market value of the land taken, you should consider all the capabilities of the land for its best and most advantageous use. The landowner is entitled to show and be compensated for the fair market value of his land for every purpose to which it is adapted. The fact...