People ex rel. Dept. of Public Works v. Alexander

• Decision Date: 18 January 1963
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. D. Owen ALEXANDER et al., Defendants and Appellants. Civ. 120.

Page 720

27 Cal.Rptr. 720

212 Cal.App.2d 84

The PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. D. Owen ALEXANDER et al., Defendants and Appellants.

Civ. 120.

District Court of Appeal, Fifth District, California.

Jan. 18, 1963.

Thorpe, Sullivan, Clinnin & Workman by Roger M. Sullivan, Los Angeles, and McKinney & Jordan by Russell McKinney, Visalia, for appellants.

Holloway Jones, Jack M. Howard, Joseph F. De Martini and A. Matthew Raggio by Joseph F. De Martini and Robert J. De Fea, san Francisco, for respondent.

CONLEY, Presiding Justice.

This is an appeal by defendant landowners, D. Owen Alexander and Perle Alexander, from a judgment of $37,400 in their favor in a condemnation suit. The action was commenced by the State of California acting through the Department of Public Works for the acquisition of access rights only from and to a 17.8-acre parcel of land owned by the Alexanders and situated at the northeast corner of the intersection of Avenue 112, a county road of Tulare County, and U. S. Highway 99. The property is located about one-half mile north of Pixley where the State is constructing a freeway along U. S. Highway 99.

At the time of the acquisition of the property by the State the defendant owners were devoting approximately one acre at the southwest corner of their property to the operation of a drive-in orange juice stand and snack bar. The balance of the land was used for farming. The area in commercial use was paved; there was a 40- X 80-foot overhead aluminum-steel canopy under which automobiles could park; adjacent thereto, but off the paved area, were located a walk-in freezer, rest rooms and a concrete slab next to a trailer, which was used as an office and for sleeping quarters. The improved area was landscaped, and it was defined on one side by a redwood fence.

The appellants feel that they were not awarded sufficient damages and have appealed, alleging errors on the part of the trial court in the admission and exclusion of evidence and also claiming that the court erred in the giving of instructions. The following questions are raised by appellants:

(1) Was it error to refuse to permit one of defendants' valuation witnesses to give his opinion as to the highest and best use of the property?

(2) Was the court wrong in preventing defendants from introducing in evidence an artist's illustration allegedly depicting the adaptability of the property for commercial uses?

(3) Was it error to admit hearsay testimony of the valuation of access openings agreed to by a buyer and a seller of a comparable parcel?

(4) Was it proper to admit the hearsay opinion of an employee of a corporation which made an alleged comparable purchase that the price paid for the property was higher than its market value?

(5) Were there errors in the court's instructions?

THE RULING PREVENTING THE WITNESS PERRY FROM GIVING HIS OPINION AS TO THE HIGHEST AND BEST USE OF THE PROPERTY CONDEMNED

Defendants called C. H. Perry as one of their valuation witnesses; he had been in business on Highway 99 for about 14 years, operated the Sky Ranch restaurant and the Tulare Inn coffee shop and was vice president of the Tulare Inn Corporation, which owns a large motel on the same side of Highway 99 about 16 miles north of Alexanders' property, at the intersection of that highway and a county road. When Mr. Perry was asked to give his opinion as to the value of the Alexander land and his opinion of its highest and best use, the plaintiff objected on the ground that the witness had not shown proper qualifications to testify. The court thereafter permitted the witness to give his opinion as to the reasonable market value of the property both before and after the taking, but ruled that he was not qualified to give an opinion as to the highest and best use of the property. This ruling was contrary to the State's second thought on the combined objection, for respondent's counsel stated to the court: '* * * if your Honor is inclined to rule that the testimony regarding value should be allowed, then I think in all fairness to the Court I wouldn't urge my objection to the highest and best use solely; * * *'

After hearing evidence that Mr. Perry had investigated highway locations between Delano and Fresno in great detail for the purpose of selecting the site for his own motel, the court acted within proper discretionary limits by permitting him to give his opinion as to value of the property taken. It is not necessary that a valuation witness be a professional appraiser or real estate broker in order to qualify as an expert. As is said in City of Stockton v. Ellingwood, 96 Cal.App. 708, 716, 275 P. 228, 231:

'If a witness, by reason of his skill, learning or technical training, understands the adaptability of the lands in question for a particular purpose, and the demand for land for such purpose, he may state the market value of the land, although he may be entirely unacquainted with the other elements which would be considered by different buyers competing for the same property. On the other hand, if the witness has knowledge of the market value of the lands, even though he possesses no technical skill, training, or ability, he may state the market value. The different elements considered by the witnesses in giving their opinions as to market value may be inquired into upon cross-examination, and if, upon such cross-examination, it appears to the court that the witness' testimony is based upon improper consideration, or upon what is usually termed as speculative only, it should be stricken from the record or withdrawn from the consideration of the court or the jury.'

(See also Los Angeles City High School Dist. v. Rodriguez, 135 Cal.App.2d 760, 767-769, 287 P.2d 871; People v. Marblehead Land Co., 82 Cal.App. 289, 302, 255 P. 553; People v. Willis, 30 Cal.App.2d 419, 86 P.2d 670; Remmers v. Ciciliot, 70 Cal.App.2d 432, 437-438, 161 P.2d 257.)

When a witness, having qualified, gives his opinion as to the value of the land sought to be condemned, he may properly give his reasons upon direct examination for his conclusion. As the element of highest and best use is an important factor to be considered in reaching a conclusion with respect to value (Sacramento etc. R. R. Co. v. Heilbron, 156 Cal. 408, 409, 104 P. 979; City of Napa v. Navoni, 56 Cal.App.2d 289, 132 P.2d 566; 124 A.L.R. 911; San Diego Land etc. Co. v. Neale, 78 Cal. 63, 69, 20 P. 372, 3 L.R.A. 83; Santa Ana v. Harlin, 99 Cal. 538, 542-544, 34 P. 224; Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236; 4 Nichols on Eminent Domain (3d ed.), § 12.314, p. 140), it would seem clear that one who is entitled to give an opinion as to the value of real property should necessarily be in a position to give an opinion also with respect to its highest and best use.

In United States v. 25.406 Acres of Land, 4 Cir., 172 F.2d 990, 993, it is said:

'Testimony as to value woule be worth little or nothing, if witnesses were not allowed to explain to the jury their qualifications as experts and the reasoning by which they have arrived at the expert opinion to which they testify; and the rule is that they may thus give the grounds of their opinions. Wigmore on Evidence 2d Ed. sec. 562; Lewis, Eminent Domain 3d Ed. sec. 654.'

We therefore conclude that the court erred in not permitting Mr. Perry to state in so many words what his opinion of the highest and best use was. However, the question remains whether this error, considered separately or in conjunction with other alleged errors in the case, would be sufficient to justify a reversal of the judgment. We are bound by the provisions of section 4 1/2 of article VI of the Constitution, and under it was can not reverse a judgment for any reason short of a miscarriage of justice. In this connection, it should be noted that the error of the court in making its ruling was largely, if not wholly, cured through additional questions and answers of the witness on cross-examination:

'Q. Now is your opinion of this value in before condition based upon any specific plan or proposal that you might have had in mind or that Mr. Alexander might have had in mind? A. Well, I base it on what we have done on our property at Paige Avenue and 99 Freeway with development which could be done there, the filling station and motel and cafe.

'Q. Do you have an idea--strike that. Would this be, sir in your opinion, what a willing buyer would pay a willing seller, say, when we are talking about this fair market value in before conditions, what a willing buyer would pay a willing seller, both knowing all of the adaptabilities and availability of this property, both being fully informed as to the highest and best use of the property on the date of valuation with neither being under any compulsion to sell or under any compulsion to buy? I know that's kind of a complicated thing. Do you understand what I mean? A. You mean what it would have brought on the market then?

'Q. That's right. A. In when?

'Q. In the before condition on April--. A. That's April of '60?

'Q. That's right. A. Well, I think it would bring a $100,000 myself.

'Q. That includes, sir, does it, the improvements that were on it at that time? A. Yes.

'Q. In the after condition, have you given any value to those improvements? A. You mean with it blocked off?

'Q. That's right. A. Well, the improvements would be worth very little with it blocked off.'

The testimony of the witness as a whole was based on his investigation of locations of possible sites for restaurants, motels and similar business establishments along the full line of the highway, and it was necessarily brought home to the jury that Mr. Perry was considering value from the standpoint of a commercial operation such as his own business. We do not believe that the jurors could have missed the implications flowing from his testimony; they must have been well aware of the basis for his...