State By and Through State Highway Commission v. Oregon-Washington Lumber Co., OREGON-WASHINGTON

• Decision Date: 26 January 1976
• Docket Number: OREGON-WASHINGTON
• Parties: STATE of Oregon, By and Through its STATE HIGHWAY COMMISSION, et al., Respondents, v.LUMBER COMPANY, an Oregon Corporation, Appellant, Sherwood & Roberts-Oregon, Inc., an Oregon corporation, formerly Sherwood& Roberts, an Oregon corporation, et al., Defendants. STATE of Oregon, By and Through its STATE HIGHWAY COMMISSION, composed of Glenn L. Jackson, Fred W. Hill and Thaddeus B. Bruno, Respondent, v.LUMBER COMPANY, an Oregon Corporation, Appellant, R. M. MacTarnahan et al., Defendants.
• Court: Oregon Court of Appeals

Page 1058

544 P.2d 1058

24 Or.App. 187

STATE of Oregon, By and Through its STATE HIGHWAY

COMMISSION, et al., Respondents, v. OREGON-WASHINGTON LUMBER COMPANY, an Oregon Corporation, Appellant, Sherwood & Roberts-Oregon, Inc., an Oregon corporation,

formerly Sherwood& Roberts, an Oregon corporation,

et al., Defendants.

STATE of Oregon, By and Through its STATE HIGHWAY

COMMISSION, composed of Glenn L. Jackson, Fred W.

Hill and Thaddeus B. Bruno, Respondent, v. OREGON-WASHINGTON LUMBER COMPANY, an Oregon Corporation, Appellant, R. M. MacTarnahan et al., Defendants.

Court of Appeals of Oregon.

Argued and Submitted Dec. 18, 1975.

Decided Jan. 26, 1976.

Gary M. Bullock, Portland, argued the cause and filed the brief for appellant.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FORT and THORNTON, JJ.

FORT, Judge.

In this condemnation action defendant appeals from a jury verdict of $340,000 awarded it, alleging errors in the receipt of certain testimony entitling it to a new trial.

The first assignment challenges the receipt of certain testimony relating to a survey of the properties to determine the respective square footage taken in each and the total of all, and the aerial photo upon which it was delineated. Ronald Banzer was employed by plaintiff as assistant resident engineer on the major highway project resulting in this acquisition. Mr. Banzer was the opening witness in this eight-day trial, and the matters challenged arose in the early part of his testimony. We set out the pertinent portions ¹of the testimony. The testimony was immediately prior to the witness's identification of the aerial photo, upon which had been outlined in colors the four parcels of land involved in the taking. The witness was then called upon to explain to the jury what the photograph generally depicted. Although the actual survey work leading to the outlining of the various parcels was not done directly by the witness, it was done by surveying crews operating under his general charge. We think the exhibit, which was offered and received not as depicting a completely accurate survey of the various parcels outlined as might be a surveyor's detailed map, but simply as one which with substantial accuracy identified the areas involved in the taking both to one another, to the project and to remaining lands of the defendant, was clearly admissible. Trook v. Sagert, 171 Or. 680, 690, 138 P.2d 900 (1943).

The second part of the first assignment also relates to testimony of Mr. Banzer received shortly after the above ruling. We set out its relevant portions from the transcript. ² Whether a lay or expert witness has the requisite knowledge, training and experience to testify concerning factual observations made by himself and those working under his supervision and control is a matter in the individual case which is largely within the discretion of the trial judge. State v. Golub, Or.App., 544 P.2d 609 (decided Jan. 12, 1976), and cases cited therein. That has long been the rule in Oregon. Fidelity Sec. Corp. v. Brugman, 137 Or. 38, 46, 1 P.2d 131, 75 A.L.R. 1333 (1931).

Defendant contends that since Mr. Banzer was neither a registered land surveyor nor a licensed registered civil engineer in Oregon, he was not qualified to testify concerning the survey and the amount of land taken. The trial court, as well as both counsel, carefully examined Mr. Banzer at length concerning his training and experience. The court concluded that he was qualified. The weight to be attached to his testimony was for the jury. There was no abuse of discretion.

In its brief defendant discusses at length confusion which arose early in the trial from an admitted error in the legal description in the complaint. Since, however, this was amended without objection at the end of the first day of trial and since defendant did not seek but in effect refused at that time to ask for a mistrial, we decline to consider the matter.

The second assignment relates to certain testimony adduced from Mr. Kolberg, a qualified real estate appraiser, and relates to evidence concerning the acquisition price paid by defendant for three parcels of property which together included the areas taken. The objection specifically is as to two of the parcels and is based on remoteness of the acquisition dates in relation to the time of taking. Defendant agrees that this is normally a question within the discretion of the trial court, Douglas County v. Meyers, 201 Or. 59, 268 P.2d 625 (1954), where five years was upheld; Highway Comm. v. Jones, 237 Or. 327, 374, 391 P.2d 625 (1964); Highway Comm. v. Empire Building, 17 Or.App. 616, 523 P.2d 584, Sup.Ct. Review denied (1974); but here contends that the trial court abused that discretion. The two pieces were acquired by defendant in August and November 1967. The actual filing of the complaints, here consolidated for trial, was in March and April 1973. The time of the first public hearing on the proposed I--5 highway widening and interchange improvement in the affected area was in April 1971 and was based upon a design change proposed in July 1969. Mr. Kolberg in his testimony allowed for and considered upward changes in land values since the 1967 acquisition. We think the court did not abuse its discretion in allowing the testimony.

Affirmed.

1 On direct examination:

'Q And after the design in 1969, would survey crews go upon the property for the purpose of locating the right-of-way and such?

'A Yes, they did.

'Q When did they first go on the property?

'A (No audible response.)

'MR. BULLOCK (defense attorney): I have a question in aid of objection, if I may.

'THE COURT: You may.

'MR. BULLOCK: Sir, did you survey the property?

'THE WITNESS: Pardon?

'MR. BULLOCK: Did you survey the property?

'THE WITNESS: I was in charge of people that have surveyed the property, yes.

'MR. BULLOCK: Did you personally go on the property and survey the property, yes or no?

'A No.

'MR. BULLOCK: I would object to his testimony, unless somebody comes out that actually went on the property and testifies, Your Honor.

'THE COURT: Well, so far we haven't had anything that critical it seems to me. For now, I will permit the examination to continue.'

2 On direct examination:

'Q Are the parcels that are to be acquired, illustrated on the exhibit?

'A Yes. Do you...