Thornton v. City of Birmingham, 6 Div. 620.

• Citation: 250 Ala. 651,35 So.2d 545
• Decision Date: 27 May 1948
• Docket Number: 6 Div. 620.
• Parties: THORNTON v. CITY OF BIRMINGHAM.
• Court: Supreme Court of Alabama

35 So.2d 545

250 Ala. 651

THORNTON v. CITY OF BIRMINGHAM.

6 Div. 620.

Supreme Court of Alabama

May 27, 1948

Taylor, Higgins, Koenig & Windham, of Birmingham, for appellant.

Thos E. Huey, Jr., and Wm. L. Clark, of Birmingham, for appellee.

SIMPSON Justice.

The appeal arises from a judgment awarding damages to a landowner, appellant Thornton, in an eminent domain proceeding instituted by the City of Birmingham to condemn the property for a city park. The assignments of error all relate to questions pertaining to compensation due for the taking. The case was painstakingly tried. The parties were ably represented by skillful counsel who exhibited much diligence in presenting the respective contentions, as well as knowledge of the pertinent principles, and our view is that the trial proceeded without prejudicial error to the appellant.

The general rule, supported by overwhelming authority, is that evidence of the price paid by the owner for the property sought to be condemned is admissible as tending to illustrate or bearing probatively on its market value, unless the sale was too remote in point of time from the condemnation proceedings as to afford no fair criterion of present value or if otherwise shown to be without probative force, as where the sale was not a voluntary one or where other special considerations conduced the sale at other than the true market value. 29 C.J.S., Eminent Domain, § 273, page 1267; 18 Am.Jur. 994,§ 351; 2 Nichols on Eminent Domain, 2d Ed., 1191, § 454; Orgel, Eminent Domain, 638, § 207; Cases, note 80, 20 C.J. 987, § 388; 29 C.J.S., Eminent Domain, § 273; City of Tulsa v Horwitz, 131 Okl. 63, 267 P. 852; City of Spokane v. Williams, 157 Wash. 120, 288 P. 258; City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149(13); United States v. A Certain Tract or Parcel of Land, D. C. Ga., 47 F.Supp. 30(6); Hanson Lumber Co., Ltd., v. United States, 261 U.S. 581(5), 43 S.Ct. 442, 67 L.Ed. 809.

And, on the question of the remoteness of time of the purchase of the property by the owner, the rule seems to be that much is left to the discretion of the trial court. City of Tulsa v. Horwitz, supra; City of Spokane v. Williams, supra; Town of Kirkland v. Cochrane, 87 Wash. 528, 151 P. 1082; Patch v. Boston, 146 Mass. 52, 14 N.E. 770.

In the case at bar the evidence of the price paid by the appellee about two years prior to the time of taking was therefore properly to be considered for whatever it was worth in ascertaining the fair market value on condemnation, and the court committed no error in connection with its admission.

It is argued by counsel that Housing Authority v. Title Guarantee Loan & Trust Co., 243 Ala. 157, 8 So.2d 835, enunciated a different principle to the effect that where the property taken had a current market value, evidence of the original cost was inadmissible. Such was not the intent of the holding. On the theory of no market value, and as a practical rule of necessity in the circumstances there disclosed, proof of original cost fifteen years previously was allowed (State v. Bienville Water Supply Co., 89 Ala. 325, 8 So. 54) as contradistinguished from the exclusion of such evidence if the property at the time of condemnation had a market value, the evidence being excluded under the latter status by reason of the remoteness of time. The court pointed out in that case that under such latter status 'original cost of the property in this remote period was not a proper factor in determining the market value of the property.' 243 Ala. at page 161, 8 So.2d at page 838.

In order to show the adaptability of the property for a subdivision which, in the circumstances appearing, was a proper element for consideration of the jury in assessing the damages (Alabama Central R. Co. v. Musgrove, 169 Ala. 424, 53 So. 1009, and cases cited; Alabama Power Co. v. Herzfeld, 216 Ala. 671, 114 So. 49; Alabama Power Co. v. Berry, 222 Ala. 20, 130 So. 541), appellant, to rebut certain testimony of an adverse witness as to the high cost of laying out such projected subdivision, sought to introduce a letter from a contractor submitting a proposal to do the work at a considerably lower cost. This was but manufacturing evidence for himself and was the plainest hearsay, and the court ruled correctly in disallowing it. It would not have been permissible for appellant to testify as to the ex parte oral statements of the contractor and 'a statement otherwise objectionable as hearsay does not become competent because it has been reduced to writing.' 31 C.J.S., Evidence, § 194, page 930; Ex parte McLendon, 239 Ala. 564, 195 So. 733; Southern Life & Health Ins. Co. v. Williams, 230 Ala. 681, 163 So. 321.

An analogous principle also condemns the effort of the appellant to introduce a tentative plan of a subdivision of the property, showing the prospective selling price of the individual lots therein. Evidence of value of the property for any use to which it is reasonably adapted is, as already stated, admissible but the proof must be so limited and the testimony restricted to its value for such purpose. Of probative tendency on this issue is the offer of a proposed plan or a possible scheme of development, and the trial court so held, but it was not permissible to incorporate in such a plan the speculative price of the individual lots. Nichols on Eminent Domain, supra, p. 1170, § 445; Rothenberger v. City of Reading, 296 Pa. 423, 146 A. 104. We note the following pertinent statement from Nichols on Eminent Domain, supra:

'As bearing upon these issues [market value] the owner may offer a plan showing a possible scheme of development for the purpose for which it is most available, but he cannot go further and describe in detail to the jury a speculative enterprise for which in his opinion or that of some expert the land might be used, and base his estimate of value upon the profits which he would expect to derive from the enterprise.' (P. 1170)

The next contention of appellant is that he should have been allowed to introduce in evidence certain recent offers of purchase which he had received for the property in question. This court is definitely committed to the rule that 'this is not the way to show the reasonable market value of land.' Dean v. County Board of Education, 210 Ala. 256, 97 So. 741, 745. The amount for which an owner could have sold his property or which a prospective purchaser might have been willing to pay is influenced by too many fortuitous circumstances to be relevant on the inquiry of value to be admissible as substantive proof thereof by the owner in a condemnation proceeding. Tennessee Coal Iron & R. Co. v. State, 141 Ala. 103, 37 So. 433; 22 C.J. 179, § 122; 31 C.J.S., Evidence, § 182. This seems to be the general rule. 31 C.J.S., Evidence, § 182c, page 887; 22 C.J. 179, § 124; 20 Am.Jur. 341, § 375.

The Dean case, supra, cited with approval Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211, which exhaustively discussed the proposition, and we take the liberty of quoting from that decision, to wit:

'Oral and not binding offers are so easily made and refused in a mere passing conversation, and under circumstances involving no responsibility on either side, as to cast no light upon the question of value. It is frequently very difficult to show precisely the situation under which these offers were made. In our judgment they do not tend to show value, and they are unsatisfactory, easy of fabrication, and even dangerous in their character as evidence upon this subject.' 191 U.S. at page 349, 24 S.Ct. at page 115.

Our own court in the Tennessee Coal Iron & R. Co. case, supra, also gave expression to similar rationale where it was observed in speaking to an analogous question:

'This was no more than to show that the witness was at the time of the offer willing to give the stated sum for the property, and stands upon a footing analagous to that of an offer to prove that a person intended to bid a certain amount for the property the value of which was in issue, which was held to be inadmissible in Ladd v. Ladd, supra [25 So. 627, 121 Ala. 583, 585, 586]. The offer is upon a lower plane as evidence of the would-be purchaser's estimate of value than actual payment by him for obvious reasons, and many considerations having no bearing upon the market value might have conduced to the owner's rejection of it; and to receive such evidence in any case of this sort may well lead to collateral inquiries and confusion of issues.' 141 Ala. at pages 109, 110, 37 So. at page 435.

We therefore cannot affirm error in the court's ruling in refusing the introduction of such proof.

Likewise, for the same reason, was it proper to inhibit the proof by the defendant that his witness 'as a practical builder would be interested in buying lots in a proposed subdi...