United States v. 3.544 ACRES OF LAND, ETC.
Citation | 147 F.2d 596 |
Decision Date | 08 February 1945 |
Docket Number | No. 8593.,8593. |
Parties | UNITED STATES v. 3.544 ACRES OF LAND, MORE OR LESS, SITUATE IN PHILADELPHIA COUNTY, PA. CITY OF PHILADELPHIA v. UNITED STATES. |
Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Norman MacDonald, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., C. James Todaro, Sp. Asst. to the Atty. Gen., and Vernon L. Wilkinson, Atty., Department of Justice, of Washington, D. C., on the brief), for appellant.
Joseph P. Gaffney, of Philadelphia, Pa., for appellee.
Before GOODRICH and McLAUGHLIN, Circuit Judges, and KALODNER, District Judge.
The property concerned in this condemnation matter is located in the City of Philadelphia. A board of view had previously reported that the owner had sustained damages of $24,808. Both sides then appealed to the District Court from that finding. The District Court trial resulted in a verdict in favor of the owner in the sum of $40,000. Two points are made by the appellant, namely:
1. Whether the District Court erred in refusing to strike the testimony of the landowner's expert real estate witnesses, Messrs. Phillips and Tomlinson, as to the value of the land condemned.
2. Whether there was error in sustaining objections to questions put to the same two witnesses on cross examination, by counsel for the government.
The case turns on the government's motion to strike out the entire testimony of Tomlinson, a witness for the landowner. Tomlinson qualified as a real estate expert with knowledge of the particular locality. On direct testimony he said that he based his opinion of the market value of the tract on: examination of the property, its location, description, the surrounding neighborhood, the street improvements, the uses the land could be put to, its most profitable use (which he thought would be for residences) and other sales in the immediate neighborhood. He thought $51,000 was the market value of the land as of April 21, 1941.
On cross examination, asked how he arrived at that estimate, he stated: "I took the value of so much an acre." Counsel pressed the witness in an endeavor to show that his basis of the valuation was a plan of development, the erection of houses and the subdivision into lots. The witness said, "Naturally in order to set a value on a piece of land, you consider what its best uses are, and I considered the best uses of the ground was for the erection of dwellings, and it is easy enough to ascertain how many dwellings could be built upon the ground." He then explained how he thought a builder would divide the land into lots. Following that, on cross examination he was asked: He explained that He went on to elaborate on its residential facilities. Following this, still on cross examination, he was asked: "And in your mind, Mr. Tomlinson, you made a calculation of how many lots and how many houses could be built, and you also calculated what their cost per lot was?" This was objected to. The Court allowed the question, saying:
The witness answered that he would consider the lots in present condition and with necessary future street improvements to be worth $50 a front foot with 1,600 feet of frontage. He testified further along this line by stating what he thought a builder would do with the property. The government then moved to strike out the entire testimony of the witness on the ground that the "estimated value given by this witness was based upon the subdivision of this land into building lots." The motion was denied.
There is no conflict here between Federal and State law such as arose in United States v. Certain Parcels of Land and Wainwright, 3 Cir., 144 F.2d 626. Both the Federal and Pennsylvania decisions are in accord, that in arriving at market value, 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; and that speculative or conjectural use is to be excluded. Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; Moudy Mfg. Co. v. Pennsylvania R. Co., 215 Pa. 110, 64 A. 373. In Pennsylvania S. V. R. Co. v. Cleary, 125 Pa. 442, 17 A. 468, 11 Am.St.Rep. 913, the Trial Judge had permitted testimony of subdivision into lots to go to the jury on the question of valuation. The Supreme Court said as to this, 125 Pa. at page 452, 17 A. at page 470:
In Hamory v. Pennsylvania, etc., R. Co., 222 Pa. 631, 72 A. 227, a witness concededly had made up his estimate of what that property was worth just before the railroad was located, by estimating what it would bring if it had been laid out in building lots and all of the lots had been sold at what he thought lots were worth there. The Supreme Court upheld the exclusion of the testimony because the witness's method of estimating the market value was improper. In Kleppner v. Pittsburgh, etc., R. Co., 247 Pa. 605, 93 A. 765, the estimates of the amount of damages were also made up by dividing the land into lots and fixing the price on which they would sell. The Court held that such testimony should have been stricken out. In Rothenberger v. Reading City, 296 Pa. 423, 146 A. 104, the exclusion from evidence of a plan for subdivision was upheld.
Under the Cleary case, a jury is not allowed to pass upon evidence which speculatively subdivides a tract into lots, with the estimate in reality being the total of the assumed value of the lots. Under the Hamory and Kleppner cases, estimates based solely upon subdivided figures are excluded. Neither situation appears in the instant matter. Tomlinson's testimony was allowed solely for the purpose of seeing how he arrived at his figure and the jury was expressly cautioned that testimony as to subdivision into lots was not to be considered by them in determining the amount to which plaintiff was entitled. Later, in the charge, the Court further emphasized this, saying:
The testimony as to lot value was developed at the insistence of the government on cross...
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