Phelps Dodge Corporation v. Atchison, TSF Ry. Co., 9682

• Decision Date: 05 September 1968
• Docket Number: 9683.,No. 9682,9682
• Citation: 400 F.2d 20
• Parties: PHELPS DODGE CORPORATION, a corporation, Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Appellee. W. S. RANCH COMPANY, Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

400 F.2d 20 (1968)

PHELPS DODGE CORPORATION, a corporation, Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Appellee.

W. S. RANCH COMPANY, Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Appellee.

Nos. 9682, 9683.

United States Court of Appeals Tenth Circuit.

September 5, 1968.

Earl H. Carroll, of Evans, Kitchel & Jencks, Phoenix, Ariz., for appellant, Phelps Dodge Corp.

A. K. Montgomery and Richard S. Morris, of Montgomery, Federici & Andrews, Santa Fe, N. M. (G. Gordon Robertson of Robertson & Robertson, Raton, N. M., was on the brief) for appellant, W. S. Ranch Co.

Richard G. Cooper, Albuquerque, N. M. (Bryan G. Johnson, Richard K. Knowlton and Marshall G. Martin, Albuquerque, N. M., were on the brief) for appellee, The Atchison, Topeka and Santa Fe Railway Co.

Before MURRAH, Chief Judge, and LEWIS and BREITENSTEIN, Circuit Judges.

DAVID T. LEWIS, Circuit Judge.

These appeals come from the District of New Mexico after entry of judgments on separate jury verdicts determining the amount of just compensation due each of the two appellants, Phelps Dodge Corporation and W. S. Ranch Company, for lands taken by the appellee railroad through condemnation proceedings for a right-of-way across lands owned by appellants. The action was initiated by the Santa Fe in state court and was removed to federal jurisdiction by timely petition filed and granted pursuant to 28 U.S.C. § 1441 and premised upon diversity of citizenship and the requisite amount in issue.

After removal and in accord with Rule 71A(k) and applicable New Mexico law¹ the trial court appointed commissioners to assess appellants damages sustained by the taking. The statutory report of the commission² set damages to Phelps Dodge at $40,550 and to W. S. Ranch at $59,500. The court confirmed the report of the commissioners but appellants demanded a trial de novo by jury.³ The cases were consolidated for trial and resulted in an award of $34,490 to Phelps Dodge and of $28,860 to W. S. Ranch. The landowners now join in the appellate contentions that the trial court erred in refusing to grant separate trials; erred in refusing to allow the jury to view the subject properties; erred in and misapplied controlling New Mexico law relative to the testimony of the Santa Fe expert witnesses on land values and thus accepted verdicts based upon incompetent and insubstantial evidence. W. S. Ranch also contends that the trial court improperly ruled out certain exhibits that reflected particularized income from its property.

The claim that these cases should have been separated for trial runs contrary to generally accepted procedural practice⁴ and thus imposes upon appellants in this court a very heavy burden of persuasion that the trial court clearly abused its discretion in refusing to depart from such practice. We are not so persuaded. Both appellants are large landowners in Colfax County, New Mexico, W. S. Ranch having 477,929 acres of which 230 acres were condemned, and Phelps Dodge having 50,285 acres of which 341 acres were condemned. Both properties were operated primarily as cow-calf ranches and both were bisected by the Santa Fe right-of-way. The terrain of the properties was roughly the same, both having natural summer and winter pasturage and both abounding in wild game and approaching in some areas the point of wilderness. The only difference worth noting in the appellants' respective lands and legal claims is premised upon the fact that W. S. Ranch had been developing commercial big game hunting in the vicinity of the railroad right-of-way and claimed that this recreational use was the highest and best use of the particular acreage taken from its vast holding. Phelps Dodge relied primarily on ranching for property valuation. However, the trial court carefully required the Santa Fe to segregate its evidence pertaining to the appellants and this single distinguishing factor in the cases was clearly preserved for the jury's consideration. We see no likelihood that the jury was confused or that either appellant was prejudiced by a consolidated trial. Gwathmey v. United States, 5 Cir., 215 F.2d 148, is clearly distinguishable upon its facts.

The request of appellants to have the jury visit and view the subject properties was refused by the trial court as simply not practical. Again, this is a matter peculiarly subject to the discretion of the court, United States v. Johnson, 9 Cir., 285 F.2d 35, and practicality certainly must be a prime consideration in the exercise of such discretion. Here, the properties were some one hundred miles from the place of trial (Albuquerque) and as the court stated: "Under any circumstances there's no conceivable way that they could see the entire ranch. I think that rather obvious within any time that's permissible." So, too, the problems of housing, feeding, and transporting a jury composed of both sexes would add considerable complexity to the proposed trip. We find no abuse of discretion in denying the request.

All parties agree, and the court held, that the proper measure of damages in New Mexico condemnation cases where a partial taking occurs clearly requires

the ascertainment of the fair market value of the entire property immediately before the taking and the fair market value of that remaining immediately after the taking. (emphasis added.) Roosevelt County Electric Co-op., Inc. v. Bowley, 78 N.M. 9, 427 P.2d 894, 896.

and that in ascertaining the fair market value of the entire property immediately before the taking one is required to consider not only "the uses to which it was applied at the time of condemnation but the highest and best uses for which it was adaptable." City of Albuquerque v. Chapman, 76 N.M. 162, 413 P.2d 204, 209. Each appellant earnestly contends that the expert testimony produced by the Santa Fe did not comply with the cited legal requirements and was neither competent nor probative of the proper measure of damages. The qualifications of the witnesses are also attacked generally and particularly.

The railroad called upon three witnesses to express expert opinions on damages, Miller, Morrow and Harton. The background of these witnesses varied but in simple summary Miller could be termed a practical expert possessing long experience as a cattle ranch manager in the area, familiar with the area, sales within the area, and with ranch operations where easements cross the property. Morrow was a real estate operator, landowner of some 7500 acres in Colfax used as a ranch and familiar with the area and sales therein. Harton was a professional appraiser whose qualifications were beyond question. The acceptance or rejection of the qualifications of a witness offered as an expert is, once more, a matter for the discretionary decision of the trial court, and when accepted, the weight to be given testimony is for the jury, Chapman v. United States, 10 Cir., 169 F.2d 641. We find no abuse of discretion in allowing any of these witnesses to testify for each possessed at least minimal qualifications. But basic qualification, as appellants correctly point out, is not enough to support a verdict if the expressed opinion is improperly based and carries no weight as a matter of law. As this court has recently stated in United States v. Sowards, 370 F.2d 87 at 92:

"Qualified and knowledgeable witnesses may give their opinion or estimate of the value of the property

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