United States v. 13.40 Acres of Land in City of Richmond

• Decision Date: 15 July 1944
• Docket Number: No. 22764-G.,22764-G.
• Citation: 56 F. Supp. 535
• Parties: UNITED STATES v. 13.40 ACRES OF LAND IN CITY OF RICHMOND, CONTRA COSTA COUNTY, CAL., et al.
• Court: U.S. District Court — Northern District of California

56 F. Supp. 535

UNITED STATES v. 13.40 ACRES OF LAND IN CITY OF RICHMOND, CONTRA COSTA COUNTY, CAL., et al.

No. 22764-G.

District Court, N. D. California, S. D.

July 15, 1944.

M. Mitchell Bourquin, of San Francisco, Cal., for plaintiff.

Heller, Ehrman, White & McAuliffe, of San Francisco, Cal., for defendants J. Philip Murphy, C. Dudley DeVelbiss, and Y. C. Soda.

GOODMAN, District Judge.

The United States filed a complaint to condemn the fee title of approximately 13.40 acres of land in the City of Richmond, County of Contra Costa, State of California, commonly known and designated as "Easter Hill," and containing rock material suitable for building and construction uses, naming the defendants C. Dudley DeVelbiss, J. Philip Murphy and Y. C. Soda, as owners of the property.

The owner defendants, by answer, alleged the fair market value of the land to be the sum of $600,000, and, in addition, prayed for the sum of $43,436 special damages. Defendants City of Richmond and American Trust Company also answered, but the issues raised in such answers were not tried and are not involved in the question before the Court. The complaint alleged that the land was acquired for the use of the United States Maritime Commission in connection with the construction of shipyards. Prior to trial, plaintiff sought to amend the complaint to limit the interest sought to be taken to a designated quantity of the rock material contained in the premises. Subsequently, however, the motion to amend was abandoned and the cause went to trial before a jury upon the issue of the proper compensation to be awarded defendant owners for the fee title to the land. Upon the trial, evidence was introduced by the government in support of its contention that the fair market value of the property as of September 15, 1943, (the date of taking) did not exceed approximately $55,000; whereas defendants introduced testimony to substantiate their claim that the fair market value of the property was in excess of $600,000. The jury returned a verdict fixing the damages in the sum of $306,000. Plaintiff has moved for a new trial principally on the ground that the evidence was insufficient to justify the verdict and that the verdict was against law.

"Easter Hill" consisted, at the time of taking, of a number of lots comprising a total area of approximately 13.40 acres located in the City of Richmond and adjacent to shipyards then in the course of construction and operation by the United States States Maritime Commission.

More than two years prior to the commencement of the action, defendants began acquiring, by purchase, certain of the lots included in the 13.40 acres, and, finally, after a period of time, succeeded in obtaining ownership of all of the lots condemned at a total cost of approximately $35,000. The parcel as a whole had been known in the Richmond community for many years as "Easter Hill" and had never been developed for residential purposes, although streets were laid out over and upon the hill; it had mainly been used by sightseers as a point from which to view the surrounding community and for Easter morning religious services.

Defendants had been excavating rock material from the "Hill" for some time and had secured permission from the City of Richmond to reduce the level of certain of the streets to the extent of 50 feet and to remove and dispose of the rock material so excavated from beneath the street levels. Prior to the commencement of the action, the Maritime Commission had been purchasing quantities of the rock material from the defendants and using the same in connection with construction work at the adjacent shipyards. At the time of the commencement of the action, defendants were lowering the level of other streets and removing the rock material, although formal permission from the City Council of the City of Richmond had not been obtained therefor. For reasons not fully disclosed by the evidence, the Maritime Commission discontinued purchasing rock material from the defendants and instituted this action. Equipment of various kinds was used by the defendants to blast out and remove the rock material. After the taking, the Maritime Commission continued the same type of operations in removing the rock material and making use of it for its purposes in connection with the shipyard construction work.

On motion for new trial, the government contends that the evidence is wholly insufficient to sustain the verdict. Its claim is that the testimony of defendants' expert witnesses clearly indicates that their opinions were based in whole, or substantially in whole, upon conjecture and speculation, namely, an evaluation of profits to be derived in the future from quarrying operations on the land.

In opposition, defendants contend that the factors relied upon by their appraisal experts were proper, and not conjectural or speculative, that such testimony went into the record without objection and that plaintiff introduced the same type of evidence and therefore cannot now be heard to object.

Preliminarily, the Court must consider the extent of its power in passing upon a motion for new trial in a condemnation proceeding.

Plaintiff's motion for a new trial designates a number of the grounds provided for in Section 657 of the California Code of Civil Procedure. While this Court is bound to follow "the practice, pleadings, forms and modes of proceedings" in condemnation proceedings, existing at the time in state courts of record, as provided in the "Conformity Statute," 40 U.S.C.A. § 258, the right to a new trial is not procedural, but is a matter of substance. See: Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann.Cas.1914D, 1029. It may therefore be properly said that, while "the practice, pleadings, forms and modes of proceedings" appertaining to motions for new trial in the Federal Courts in condemnation proceedings should follow like forms in the state courts, nevertheless, the granting or denial of a new trial goes to substance and not to form.

Plaintiff's notice of intention to move for new trial was filed April 21, 1944. The motion was argued to the Court on May 19, 1944, and on that date submitted upon the later filing by both sides of written briefs. On or about June 20, 1944, the last brief having been filed, counsel called the court's attention to Sec. 660 of the California Code of Civil Procedure, which provides that "the power of the court to pass on motion for a new trial shall expire sixty (60) days from and after * * * filing of the notice of intention to move for a new trial." Sec. 660 further provides that non-determination of the motion within the sixty (60) day period shall be deemed a denial thereof. No authorities have been submitted, nor have any been found by us, which consider the question of whether this court is bound by the foregoing code section. However, Section 660 is not procedural in the sense contemplated by 40 U.S. C.A. § 258. Section 660 limits the power and jurisdiction of the state courts on motions for new trials in all cases and no doubt was enacted to expedite determination of causes in the state courts for reasons deemed necessary or proper by the State Legislature. No such limitation of power exists in the federal courts. Furthermore, as already pointed out, the granting or denial of a new trial is substantive, not procedural. Slocum v. New York Life Ins. Co., supra. Being satisfied that this is not a "procedural" matter, I do not feel bound by Section 660 of the California Code of Civil Procedure.

That the verdict is merely against the preponderance of the evidence or that the court itself might have arrived at a different result, are not, by persuasive authority, sufficient grounds for the granting of a new trial. Stentor Electric Mfg. Co. v. Klaxon Co., D.C., 30 F.Supp. 425; Chesevski v. Strawbridge & Clothier, D.C., 25 F.Supp. 325; Weed v. Lyons Petroleum Co., D.C., 294 F. 725; 20 R.C.L. 274.

The verdict may be set aside, however, if the Court is satisfied that the evidence as a whole, after according to it the highest probative force to which it is lawfully entitled, is insufficient to support the verdict. Maryland Casualty Co. v. Reid, 5 Cir., 76 F.2d 30; Pleasants v. Fant, 22 Wall. 116, 120, 22 L.Ed. 780; Southern Pac. Co. v. Hamilton, 9 Cir., 54 F. 468.

To the jury in this case was committed the determination of the market value, fairly determined, of defendants' land at the date of taking. The jury was instructed as to the meaning of market value according to the principles enunciated in United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L. Ed. 336, 147 A.L.R. 55, and Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236.

Actual sales could not be used as a basis for ascertainment of market value of the land and hence the testimony of so-called expert appraisers was presented to support defendants' claimed valuation. Washington Water Power Co. v. United States, 9 Cir., 135 F.2d 541.

Defendants supported their claim of valuation by the testimony of two expert appraisers —Walter N. Gabriel and F. Bruce Maiden. Mr. Gabriel appraised the fair market value of the land at $622,725.00 and Mr. Maiden appraised it at $687,000. The government produced two expert appraisers —George H. Canfield and George Thomas. Mr. Canfield testified that in his opinion the market value of the land at the time of taking was $55,050, and Mr. Thomas' opinion was $45,000.

Both Mr. Maiden and Mr. Gabriel were men of wide experience in real estate appraisal and of excellent standing and reputation. The same may be said of Mr. Canfield and particularly of Mr. Thomas, whose experience and services on behalf of both governmental agencies and private enterprise, were perhaps greater than the other three. All the more startling and extraordinary, therefore, is the extreme divergence of appraisements—$45,000 as against $685,000. It cannot be explained by either...