National Brick Co. v. United States

• Decision Date: 26 October 1942
• Docket Number: No. 8047.,8047.
• Citation: 76 US App. DC 329,131 F.2d 30
• Parties: NATIONAL BRICK CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

76 US App. DC 329, 131 F.2d 30 (1942)

NATIONAL BRICK CO. v. UNITED STATES.

No. 8047.

United States Court of Appeals for the District of Columbia.

Argued October 5, 1942.

Decided October 26, 1942.

Messrs. Edwin C. Dutton and Richard E. Wellford, both of Washington, D. C., for appellant.

Mr. John P. Hearne, of the Bar of the State of California, pro hac vice, by special leave of Court, with whom Norman M. Littell, Assistant Attorney General, and Messrs. Vernon L. Wilkinson and Alexander H. Bell, Jr., all of Washington, D. C., were on brief, for appellee. Messrs. Charles R. Denny, Jr. and Dwight H. Doty, both of Washington, D. C., entered appearances for the appellee.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

GRONER, C. J.

This is an appeal by a landowner in a condemnation proceeding instituted by the United States to acquire lands for the road development program of the National Capital Parks, Parkway and Playground System. The property involved consists of two and a half acres of a thirty-one acre tract of land adjoining the Baltimore & Ohio Railroad right of way in the District of Columbia. Appellant acquired the tract about thirty years ago and constructed on a part of it a plant for making brick. The plant has been in operation continuously, and during the entire thirty years brick and sand have been sold to builders in the District of Columbia and vicinity. Of the acreage of the entire tract about one-fifth is denominated "sand land", and the particular two and a half acres taken by the United States is a solid sand bank sloping from a height of forty to ninety feet above the level of the adjoining railroad tracks. The bank contains approximately 300,000 cubic yards of sand, weighing approximately 450,000 tons. Appellant valued the land taken at $67,500. The jury awarded $9,000.

The record does not include the pleadings and the evidence is condensed to a degree that makes it difficult to determine precisely what occurred at the trial, but enough appears, we think, to show that error was committed by the Court in the rejection of material evidence.

At the trial Mr. Dalley, a part owner of the property and manager of the Brick Company, testified that the most valuable use to which the two and one-half acres proposed to be taken could be put was the manufacture of brick and the sale of sand to contractors for making building mortar, that the property adjacent to it had been so used during the past thirty years, and that the sale of sand was on a per ton basis, appellant either making delivery at building operations in the District of Columbia, or permitting the purchaser to remove the sand from the bank into his own trucks.

He testified "that the value of the land for the sand contained therein was $67,500, which testimony, on motion of the United States, was stricken out, because he has estimated the value by the value of the sand per ton."

Another witness, William Obrey Steel, who is engaged in the District of Columbia in the business of buying and selling sand and operating a sand pit, was asked to testify to the value of the sand per ton "in the bank just as it is now." On objection by the United States, the Court refused to allow the witness to answer. Again, he was asked, "Have you bought sand of the same quality as the sand contained in this two and a half acres?" He answered that he had. He was then asked what he had paid for it. An objection to this question was sustained, whereupon a colloquy among counsel and the Court ensued, during the course of which the Judge remarked to counsel for the landowner: "You are entitled to get the fair market value of your property for land as real estate. That is what you are entitled to. You are trying to get most everything but that."

The same witness was thereupon asked whether, in view of his experience with "sand land" and in the purchase of sand, he was in position to state what the fair market value of this particular land was at the present time. This question too, the Court refused to allow to be answered, stating to counsel: "He, (the witness) is not the owner. The owner can testify to his opinion...