St. Joe Paper Co. v. United States

• Decision Date: 11 May 1946
• Docket Number: No. 11528.,11528.
• Citation: 155 F.2d 93
• Parties: ST. JOE PAPER CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

155 F.2d 93 (1946)

ST. JOE PAPER CO. et al. v. UNITED STATES.

No. 11528.

Circuit Court of Appeals, Fifth Circuit.

April 18, 1946.

Rehearing Denied May 11, 1946.

J. W. Harrell, of Jacksonville, Fla., Weldon G. Starry, of Tallahassee, Fla., and James H. Finch, of Marianna, Fla., for appellants.

George Earl Hoffman, U. S. Atty., of Pensacola, Fla., and J. Edward Williams, Acting Head, Lands Division, Dept. of

Justice, and Dwight D. Doty and Roger P. Marquis, Attys., Dept. of Justice, all of Washington, D. C., for appellee.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

On May 8, 1941, the Secretary of War under authority of congressional acts,¹ by filing a declaration of taking, condemned to public use 28, 517.65 acres of land in Bay County, Florida, for the establishment of an Air Corps Flexible Gunnery School near Panama City, to be known as Tyndall Field. Appellants owned 23,357.95 acres of the total acreage condemned. The St. Joe Paper Company owned 11,954.39 acres; H. H. Wells owned 998.95 acres; and Harry E. Shiland owned 404.62 acres. Being dissatisfied with the compensation awarded by the jury, each separately appealed from the judgment in his favor based on the award.

Appellants' specifications of errors² concern: (1) Admission of testimony of W. H. Bingham, a Government witness, over objections as to his qualifications; (2) exclusion of testimony on the adaptation of the land to certain uses; (3) exclusion of testimony on the purposes for which the land was purchased in the twenties and held at the time of condemnation; (4) exclusion of testimony on offers made by prospective purchasers. The appellants urge that the unfair and incomplete picture rendered to the jury by these errors resulted in grossly inadequate awards.

The alleged ground of W. H. Bingham's disqualification is ignorance both of property values in the vicinity of appellants' property and of values of comparable property.

The qualifications required of an expert before he may give an opinion is a question for the trial judge and his decision thereon is conclusive, unless clearly erroneous as a matter of law.³

In overruling objections to this witness testifying as to values, the trial court said:

"The witness having testified that he has had nine years' experience in the appraisal of land and some five years of the nine in the State of Florida; that prior to his appraisal of the land in question he appraised different tracts within a radius of ten miles — I believe that is correct — of the property in question; that he has an opinion which he arrived at from his experience as an appraiser and from talking with people, with persons who were acquainted with the market value of the land in question, and from an investigation of the public records whereby he ascertained what sales had been made, and the prices paid therefor, of land comparable to the land in question; the Court is of the opinion that he is qualified to express an opinion in this proceeding."

In passing upon the motion to strike the testimony of this witness on the ground that he had not qualified as an expert, the court said:

"The witness has not only testified as an expert appraiser, but he has testified that he reached his opinion * * * from sales made in the community, of which he had knowledge through the records and by consulting real estate men and others who knew the value of the property. Now this is an effort to disqualify the witness upon the ground that he has never appraised a piece of property of the exact character of this property, bounded on one side by the Gulf and on the other side by some other water. If that is good reasoning it would seem to me that you will never get an appraiser to appraise the property unless you had one that had appraised some island. Motion denied."

Since we think the trial judge was not in error as a matter of law, his decision on the expert's qualifications is conclusive.

Where private property is taken for public use and at the time and place of taking there is a market price brought about by a general buying and selling of the kind of property in question, then that market price is just compensation. United States v. New River Collieries Co., 262 U.S. 341, 43 S.Ct. 565, 67 L.Ed. 1014. "Where, for any reason, property has no market, resort must be had to other data to ascertain its value."⁴ In a recent case, Cameron Development Co., Inc., v. United States, 5 Cir., 145 F.2d 209, 210, we said:

"In determining this value, the highest and most profitable use for which the property is adaptable and needed, or is likely to be needed in the near future, is to be considered * * *."

The Cameron Development Co. case followed Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 708, 78 L.Ed. 1236, where the court said:

"* * * The sum required to be paid the owner does not depend upon the uses to which he has devoted his land but is to be arrived at upon just consideration of all the uses for which it is suitable. The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered * * * to the full extent that the prospect of demand for such use affects the market value while the property is privately held. * * * And, to the extent that probable demand by prospective purchasers or condemnors affects market value, it is to be taken into account. * * *"

In the Cameron Development Co. case we pointed out that before the owner of the condemned land could show adaptability to a use he must show a market existed or was reasonably likely to exist in the near future.⁵

Appellants attempted to question their witnesses concerning the most profitable future use for their lands and concerning their possible development as a high class resort, residential, or business community. The district court ruled appellants had laid no proper foundation for the answers to these questions because they had not shown that a demand would exist in the future for these lands or others similarly situated. Appellants tendered no evidence to show either a present or future demand. Witnesses for the Government testified that the market for similar lands in the vicinity was stagnant and the "particular peninsula upon which Tyndall Field was located just hadn't panned out."

While an owner of land in Florida by an investment of sufficient capital may develop almost any land for resort, residential, or business purposes, the subsequent demand for the development will determine the success or failure of that investment.

Appellants argue: that as one link in their chain of proof they could show adaptability for resort and residential purposes and then later, as the connecting link to value, they could introduce the evidence on present or future demand; that the trial court should not have tried to control the order of the introduction of their evidence; and that an offer of evidence on market conditions would face the objection that as a foundation the appellants must first show the adaptability of the property for resort, residential, or business purposes.

Appellants' argument has a major fallacy: When they asked questions concerning adaptability for resort and residential business purposes, they never made an offer to prove to the satisfaction of the court the present or future demand, the connecting link from adaptability to value.

4 C.J.S., Appeal and Error, § 291 (b), page 580, states the rule, to-wit:

"As a general rule, in order to preserve for review an objection to the exclusion of evidence, a proper question must be asked, and, on objection thereto, a proper offer must be made at the time showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all the facts necessary to establish its admissibility. * * *" The rules of evidence in the courts of Florida, the locality of the land, and not the Federal Rules of Civil Procedure govern condemnation proceedings in the court below.⁶

In Ittleson v. Browning, 99 Fla. 1195, 128 So. 639, the Supreme Court of Florida stated the Florida rule, in a syllabus written by the court, as follows:

"The mere fact that proffered evidence is not full and complete within itself, but forms only one link in the chain, so that it would have to be supplemented by other evidence in order to avail the party offering it, may not render such evidence incompetent or inadmissible; but, for such evidence to be admissible, it should be made clearly to appear to the trial court that the evidence, so offered, does form a link in the chain. Emphasis ours.

* * * * * *

"Where the relevancy or the materiality of papers offered in evidence did not appear at the time they were offered, and there was no offer or promise to connect them with other evidence, an assignment of error based on the ruling of the court in refusing to permit them to be read in evidence is not well taken."

In Kline v. Blackwell, 5 Cir., 63 F.2d 897, 899, this court in a Florida case referring to exclusion of answers to quoted questions, said:

"The effort was in many instances to bring out independent facts which under Florida practice would make the witness become the examiner's, with no statement of what the witness would say or must have said to speak truly. Without such information plainly given at the time the trial court cannot tell how to rule unless the question very clearly indicates its answer, nor can an appellate court tell whether the suppression of the question was really prejudicial. Should a new trial be ordered to have such questions answered, it might result only in finding out that the witness knew nothing about the matter or would testify the reverse of what the question indicated. Hence the wise rule that reversal will not generally result from the suppression of a question unless its answer appears or direct information...