Territory by Sharpless v. Adelmeyer

• Citation: 363 P.2d 979,45 Haw. 144
• Decision Date: 19 July 1961
• Docket Number: No. 4172,4172
• Parties: TERRITORY OF HAWAII, by Richard K. SHARPLESS, Its Attorney General, v. Iwalani Bemrose ADELMEYER et al., TERRITORY OF HAWAII, by Richard K. SHARPLESS, Its Attorney General, v. AMERICAN SECURITY BANK, a Hawaiian Corporation, et al.
• Court: Supreme Court of Hawai'i

Page 979

363 P.2d 979

45 Haw. 144

TERRITORY OF HAWAII, by Richard K. SHARPLESS, Its Attorney General, v. Iwalani Bemrose ADELMEYER et al., TERRITORY OF HAWAII, by

Richard K. SHARPLESS, Its Attorney General, v. AMERICAN SECURITY BANK, a Hawaiian Corporation, et al.

No. 4172.

Supreme Court of Hawai'i.

July 19, 1961.

Syllabus by the Court.

1. Where the value of the property is material, any evidence which will aid the jury in fixing the fair market value of the property should be considered by them. Any competent evidence of matters, not merely speculative, which would be considered by a prospective vendor or purchaser or which tend to enhance or depreciate the value of the property taken is admissible.

2. The competency of a witness to give his opinion as to value is for the trial court. The extent of his knowledge of the subject matter goes to the weight rather than to the admissibility of his testimony where qualification of witness is addressed to the sound discretion of the trial court.

3. The 'before and after' method of valuation precludes separate assessments of land value and damages and a concomitant consequence is the impossibility of setting off special benefits against severance damages alone as now required by R.L.H.1955, § 8-21.

4. In partial taking cases, no rigid rules of valuation can be prescribed. The facts and circumstances of each case must be considered to determine the applicable formula.

5. Partial taking cases applying the method of valuing the part taken in relation to the entire tract are those usually involving strips of land which have no real economic or market value standing alone. But where the part taken has an independent economic use with a market value and commands a higher value as a separate entity, such value may be allowed.

6. Where the parcels taken, in a partial taking case, approach such size and character as to assume proportions of independent economic use, in the light of the highest and best use of the land, the method of valuation of the parcels taken, whether as a separate entity or in relationship to the whole, then becomes a matter of opinion of the appraiser to be weighed by the jury.

7. Market value is not limited to the value for the use to which the land is actually devoted, but it may have a potential use value.

8. A motion to strike the testimony of a witness must be precise, definite and certain and be directed with precision to matters sought to be stricken.

9. An owner, by virtue of his ownership and consequent familiarity with the land and real estate market, is generally held to be qualified to give his opinion as to the value of his land, the weight to be given such testimony being a question for the jury.

10. In a proceeding to condemn part of a tract of land, the rule that the part taken should be valued as part of the whole does not mean that it must be valued according to its proportional value of the whole by multiplying the number of square feet therein by the square foot value of the entire tract as the phrase 'as a part of the whole' does not mean average part of the whole, but that in assessing value of the part taken, the trier of facts must consider its value arising from its availability for use in conjunction with the part not taken, and any increased value inhering in the part taken as a part of the larger tract must be reflected in the award to the owners.

11. Neither the trial nor appellate court can substitute its judgment for that of the jury in awarding just compensation in eminent domain proceedings, and the verdict must stand unless it is plain that it is so excessive as to have been brought about by passion or prejudice, or is so excessive as to be shocking to the enlightened conscience.

12. Verdicts based on conflicting evidence will not be set aside where where is more than a scintilla of substantial evidence to support a jury's findings.

Robert K. Richardson, Deputy Atty. Gen. (Shiro Kashiwa, Atty. Gen. and Charles M. Tonaki, Deputy Atty. Gen., on the briefs), for appellant.

J. Garner Anthony, Honolulu (Robertson, Castle & Anthony and Barry Chung, Honolulu, with him on the brief), for appellees Babbitt, Guard, Castle and Walker.

Clarence Y. Shimamura, Honolulu, for appellees Shimamuras.

Before TSUKIYAMA, C. J., CASSIDY and WIRTZ, JJ., and TASHIRO, Circuit Judge, assigned by reason of vacancy, and CROCKETT, Circuit Judge, in place of LEWIS, J., disqualified.

WIRTZ, Justice.

The State initiated two cases in the Circuit Court of the First Circuit seeking to condemn, pursuant to Chapter 8, R.L.H.1955, certain properties belonging to defendants-appellees fronting on Nuuanu Avenue in Honolulu for a highway widening project. The defendants-appellees comprise Howard Carter Babbitt, Thomas and Ruth Richardson Guard, Clarence Yoshinori and Clarenore Yuriko Shimamura and family, Ethelinda Schaefer Castle and Henry Alexander and Una Craig Walker, and are hereinafter referred to as the landowners. In all instances, the State is acquiring a fraction of the landowners' land the smallest parcel comprising 9,579 square feet, and leaving the remaining and larger portion untouched. By order of the trial court the cases were consolidated for trial before a jury.

Neither special benefits nor severance damages were claimed. The sole issue of fact was just compensation for the lands taken, to be measured on the basis of their market value. At the outset of the trial, the jury viewed the premises. In addition to four of the landowners, two apraisers testified on behalf of the State and three for the landowners. The testimony as to value was conflicting. The range was from $1.15 per square foot to $2.50 per square foot. The jury returned a verdict awarding compensation by valuing each of the parcels of land taken at $1.75 per square foot. Judgments were entered thereon, from which this appeal was taken.

The first of the two Specifications of Error claims that '[it] was error for the Court to deny the State's Motion to Strike the testimony of appraisers Collins, Miles and Kaneshiro.'

George Collins was the first of three real estate appraisers called on by the landowners for expert testimony. Using the 'before and after' method of valuation, he testified that, in his opinion, the Castle property taken had a market value of $1.97 per square foot. Utilizing the same method, he placed a market value on the Walker property taken of $1.83 per square foot. His market value for the Babbitt and Guard parcels taken was $1.66 per square foot on a comparative basis with his findings as to the Walker property. Upon the conclusion of his testimony, the State moved to strike the 'entire testimony on the basis that he has used improper methods plus being in contradiction to the Rodrigues case (referring to Hawaii Housing Authority v. Rodrigues, 43 Haw. 195, rehearing denied 43 Haw. 414)' which motion was denied.

The testimony of the other two appraisers was limited only to the value of the Shimamura property. Appraiser Kaneshiro expressed the opinion that this parcel had a market value of $2.15 per square foot, while appraiser Miles fixed the market value at $2.25 per square foot. At the conclusion of the testimony of Miles, the State moved to strike his testimony 'and that of the previous witness on the same grounds that we moved to strike the testimony of Mr. Collins,' which motion was likewise denied.

It is to be noted that the State, in its motion to strike, neither specified the 'improper methods' nor pointed to any specific testimony of the witness as being improper. It is only by a careful scrutiny of the record in this case that we are able to obtain a glimpse of the 'improper methods,' other than the reference to the Rodrigues case, and even then none too clearly.

The sole issue here was the market value of the lands taken. All the witnesses addressed themselves to this issue, giving their opinions on market value. Their testimony was, accordingly, material and relevant. It is generally held that where the value of the property is material, any evidence which will aid the jury in fixing the fair market value of the property should be considered by them. Any competent evidence of matters, not merely speculative, which would be considered by a prospective vendor or purchaser or which tend to enhance or depreciate the value of the property taken is admissible. 31 C.J.S. Evidence § 182, p. 883; 30 C.J.S. Eminent Domain § 430, p. 163. The only question, then, is one of competency of the witnesses and of their testimony.

It is universally held that 'witnesses having the necessary qualifications may give their opinions as to the value of property.' 5 Nichols, Eminent Domain, 3d ed., § 18.4, p. 135. No issue has been raised here as to the qualifications of these witnesses. Further, the question of competency is one for the trial court and on appeal will be reversed only on a showing of abuse of discretion. 18 Am.Jur., Eminent Domain, § 355, p. 1000; Housing Authority of City of Little Rock, Arkansas v Winston, 226 Ark. 1037, 295 S.W.2d 621; Hickey v. United States, 3 Cir., 1953, 208 F.2d 269; Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825; Paradise Prairie Land Co. v. United States, 5 Cir., 1954, 212 F.2d 170. '* * * The competency of a witness to give his opinion as to value is for the trial court. The extent of his knowledge of the subject matter goes to the weight rather than to the admissibility of his testimony. * * *' Allen v. First Nat. Bank of Atlanta, 5 Cir., 1948, 169 F.2d 221, 224. Or, as one court has put it: '* * * It will not do to stigmatize these estimates of value as bald conclusions of the witness. All opinions of values depend for their acceptance probably more upon the faith the witness inspires rather than upon how well with reason he supports his conclusions. But be this as it may, the evidence was competent and if the values were not supported by good reasoning, they went to...