Pacific Live Stock Co. v. Warm Springs Irr. Dist.

• Decision Date: 07 February 1921
• Docket Number: 3512.
• Parties: PACIFIC LIVE STOCK CO. v. WARM SPRINGS IRR. DIST.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F. 555

PACIFIC LIVE STOCK CO. v. WARM SPRINGS IRR. DIST.

No. 3512.

United States Court of Appeals, Ninth Circuit.

February 7, 1921

John L Rand, of Baker, Or., P. J. Gallagher and W. H. Brooke, both of Ontario, Or., and Edward F. Treadwell, of San Francisco Cal., for plaintiff in error.

Ed. R Coulter, of Weiser, Idaho, H. C. Eastham, of Vale, Or., and Allen H. McCurtain, and Thomas G. Greene, both of Portland Or., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The parties hereto will be named plaintiff and defendant as in the court below. The Warm Springs irrigation district brought an action to condemn, for use as a reservoir site, a portion of the ranch owned by the defendant, known as the Warm Springs ranch. The plaintiff alleged the making of surveys, the location of a dam site and reservoir at a point 1,400 feet south of the south line of the defendant's property, the organization of the plaintiff as an irrigation district, and its intention to irrigate 30,000 acres or more of land. It alleged the offer to the defendant of $55,000 for the 2,500 acres which it sought to appropriate and the offer of the defendant to accept $143,000 and their inability to agree. Upon the evidence the court below fixed the value of the property at $90,000, and awarded the defendant $5,000 as attorney's fees.

Error is assigned to the denial of the defendant's motion that the complaint be made more definite and certain so as to show whether the plaintiff sought to acquire the fee-simple title to the land described in the complaint, or an easement therein, and error is also assigned to the entry of the judgment in the cause for its omission to specify whether the plaintiff acquired thereby the fee-simple title or an easement. We find no error in either assignment. The Oregon statute (Olson's Oregon Laws, Sec. 7099) declares that the complaint in such a case 'shall describe the land, right, or easement sought to be appropriated with convenient certainty,' and in section 7103 it is provided:

'Upon the payment into court of the damages assessed by the jury, the court shall give judgment appropriating the lands, property, rights, easement, crossing or connection in question, as the case may be, to the corporation, and thereafter the same shall be the property of such corporation.'

The court below ruled that--

'It is not necessary, nor do I deem it proper, to determine at this time whether such appropriation will amount to the taking of the fee or only an easement. The judgment will follow the language of the statute appropriating the property for reservoir purposes. The legal effect can be determined when the question arises, if it ever does.'

In 20 C.J.

947, it is said:

'Where the statute provides what shall be set out in the petition, nothing more need be alleged.'

And in 20 C.J.

857, it is said:

'The interest which the petitioner seeks to acquire, whether as easement or a fee, need not be stated.'

Among the cases so holding are Dexter & N.R. Co. v. Foster, 64 Misc.Rep. 500, 119 N.Y.Supp. 731, and In re Metropolitan El. Ry. Co. (Sup.) 12 N.Y.Supp. 506. But, if there was error in said rulings, it resulted in no injury to the defendant, for in a subsequent suit between the parties brought to determine the nature of the estate so condemned, the court below held that the right acquired by the plaintiff was but an easement, and that decision has been affirmed by this court in Warm Springs Irrigation District et al. v. Pacific Live Stock Co. (C.C.A.) 270 F. 560.

It is contended that the witnesses Hunt, Greig, and Weaver, who testified for the plaintiff as to the value of the property in question, were not qualified to give evidence on that question, and that it was error to admit their testimony. The land a portion of which was sought to be condemned was operated as a cattle ranch. It was a tract of about 5 miles in length and varying in width from one-quarter of a mile to more than a mile lying along the middle fork of the Malheur river in Malheur and Harney counties. The defendant had owned it 25 years. It was not a simple matter to obtain satisfactory evidence of its value detached as it was from other like properties situate at considerable distances apart on streams in Central and Western Oregon. The three witnesses so named had not seen the defendant's ranch, nor were they acquainted with its value before they went there in December, 1918, and spent 2 days thereon examining the same for the purpose of acquiring knowledge and forming a judgment as to its value. This they did at the instance of the plaintiff. In November, 1919, they again spent a day upon the ranch for the same purpose. Hunt lived in Malheur county at a distance of 116 miles from the land in question. He had lived there 19 years. His occupation was farming. He had had experience in farming irrigated lands. He had handled stock on a hay ranch. Weaver also lived in Malheur county; had lived there the most of the time since 1883. He owned land on Willow creek. He had bought and sold land in Malheur county, and had raised cattle on such lands, and he had run cattle on the range. Greig also lived in Malheur county. He was engaged in operating three ranches, and at times he did 'a little real estate business,' and since 1905 he had been in the land business, buying and selling land for himself and associates, and in the irrigation business, all generally in the eastern part of Malheur county. The mere fact that these witnesses lived at a distance of 100 miles or more from the land in controversy does not necessarily disqualify them, and aside from that fact there is nothing in the evidence to show that they lacked full qualification to testify as witnesses to the value of the land in question. It was for the court below to determine whether they were qualified to testify. In Stillwell Mfg. Co. v. Phelps Railroad Co., 130 U.S. 520, 527, 9 Sup.Ct. 601, 603 (32 L.Ed. 1035), Mr. Justice Gray said:

'Whether a witness called to testify to any matter of opinion has such qualifications and knowledge as to make his testimony admissible is a preliminary question for the judge presiding at the trial; and his decision of it is conclusive, unless clearly shown to be erroneous in matter of law.'

And in Montana Railway Co. v. Warren, 137 U.S. 348, 353, 11 Sup.Ct. 96, 97 (34 L.Ed. 681) Mr. Justice Brewer said:

'It is difficult to lay down any exact rule in respect to the amount of knowledge a witness must possess; and the determination of this matter rests largely in the discretion of the trial judge.'

That rule was followed by this court in Union Pac. Ry. Co. v. Novak, 61 F. 573, 580, 9 C.C.A. 629. In 10 R.C.L. 218, it is said:

'Opinion evidence is also usually admitted from persons who are not strictly experts, but who from residing and doing business in the vicinity have familiarized themselves with land values, and are more able to form an opinion on the subject at

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