Roy v. State

• Decision Date: 25 June 1963
• Citation: 104 N.H. 513,191 A.2d 522
• Parties: Edward J. ROY v. The STATE of New Hampshire.
• Court: New Hampshire Supreme Court

Page 522

191 A.2d 522

104 N.H. 513

Edward J. ROY v. The STATE of New Hampshire.

Supreme Court of New Hampshire.

Argued Feb. 6, 1963.

Decided May 28, 1963.

Rehearing Denied June 25, 1963.

Devine, Millimet, McDonough, Stahl & Branch, Joseph A. Millimet, Manchester, for plaintiff.

William Maynard, Atty. Gen., and Alexander J. Kalinski, Asst. Atty. Gen., Manchester, for the State.

KENISON, Chief Justice.

The State's exceptions to the admission of evidence, its motion to strike the plaintiff's testimony as to market value and damage by the taking and its motion to set aside the verdict are based primarily on the contention that the plaintiff 'did not know what market value meant, or if he did, he was not willing to testify objectively about it with reference to his own land.' Our examination of the three volumes of testimony and the exhibits in this case confirms the concession of plaintiff's counsel that 'although Roy was an expert real estate subdivider, he was not an expert testifier.' The crucial issue is whether the Trial Court could find that the witness was qualified and that his testimony would be of assistance to the jury. Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 17 A.2d 529; Ricker v. Mathews, 94 N.H. 313, 317, 53 A.2d 196, 171 A.L.R. 296; Berry v. State, 103 N.H. 141, 144, 167 A.2d 437.

'The opinions of witnesses as to the value of any real estate, goods or chattels may be received as evidence thereof, when it appears to the court that they are qualified to judge of such value.' RSA 516:29. This statute was enacted in 1867 to confirm, in effect, the dissenting views of Chief Justice Doe so that 'opinion evidence of property values is now received whenever the trial court finds it will probably aid the trier' [of fact]. Eames v. Southern New Hampshire Hydro-Electric Corporation, 85 N.H. 379, 385, 159 A. 128, 131. See 7 Wigmore, Evidence (3d ed.) c. 1943, p. 53; Maguire, Hearsay Obscurity--Glimmers of Daylight, 3 N.H.Bar J. 145, 146 (1961); Greene, Eminent Domain in New Hampshire, 1 N.H.Bar J. (No. 3) 12, 18 (1959). We are aware that the testimony of a landowner as to the value of his land may be bottomed in bias. It is not too much to expect that jurors are likewise aware of the tendency of such a witness to consciously or unconsciously inflate his damages from a condemnation of his property and that they will discount it accordingly. West, Preparation and Trial of a Condemnation Case in Fourth Annual Institute on Eminent Domain 67, 103 (The Southwestern Legal Center, 1962).

The disparate estimates of valuation and damages in eminent domain proceedings are not new and will probably continue in the future. Human nature being what it is, there continues to be a painful gap between what the owner demands and the condemnor is prepared to pay. Stratton v. Jaffrey, 102 N.H. 514, 162 A.2d 163. In the present case the plaintiff testified in effect that his damages were $58,000, while the State's witnesses testified do demages of $9,300, $14,000 and $17,500 respectively. As was noted in Edgcomb Steel Co. v. State, 100 N.H. 480, 492, 131 A.2d 70, the fact that the jury adopted none of the witnesses' figures indicates that the plaintiff's 'cross-examination was not without effect.'

It was evident that at times the plaintiff during his cross-examination was confused in expressing his concept of market value and that on occasion he was expressing the value of his property to himself rather than the value to a willing seller and a willing buyer. Davis v. State, 94 N.H. 321, 322, 52 A.2d 793. Nevertheless the plaintiff's testimony was directed at what a prospective purchaser would take into account in determining what the property was worth as a whole if devoted to the sale of building lots. It was not open to serious question that plaintiff's property was entitled to be valued at its most advantageous use to which it could be placed on the day it was condemned (Emmons v. Utilities Power Company, 83 N.H. 181, 184, 141 A. 65, 58 A.L.R. 788) and its use for house lots was generally acknowledged in this case to be its most advantageous use. Buena Park School Dist. of Orange County v. Metrim Corp., 176 Cal.App.2d 255, 1 Cal.Rptr. 250. If this use had been speculative, remote or nebulous, the value of the individual lots would not have been competent evidence on the value of the whole tract. Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 109 N.E.2d 148; Pennsylvania S. V. R. Co. v. Cleary, 125 Pa. 442, 17 A. 468. However on the record in this case the land development was not a paper tiger and its...