United States v. CERTAIN PARCELS OF LAND, ETC.

• Decision Date: 29 November 1958
• Docket Number: No. 7663.,7663.
• Citation: United States v. CERTAIN PARCELS OF LAND, ETC., 261 F.2d 287 (4th Cir. 1958)
• Parties: UNITED STATES of America, Petitioner, Appellant, v. CERTAIN PARCELS OF LAND IN THE COUNTY OF ARLINGTON, STATE OF VIRGINIA, and Howard W. Silsby, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

261 F.2d 287 (1958)

UNITED STATES of America, Petitioner, Appellant, v. CERTAIN PARCELS OF LAND IN THE COUNTY OF ARLINGTON, STATE OF VIRGINIA, and Howard W. Silsby, et al., Defendants, Appellees.

No. 7663.

United States Court of Appeals Fourth Circuit.

Argued June 17, 1958.

Decided November 29, 1958.

Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., on the brief) for appellant.

Howard W. Smith, Jr., Alexandria, Va., for appellee, Smoot Sand and Gravel Corp.

Before SOPER and HAYNSWORTH, Circuit Judges, and PAUL, District Judge.

PAUL, District Judge.

This is an appeal by the United States from a judgment for $324,000.00 entered against it as the result of a jury verdict fixing that amount as compensation to be paid for a tract of land taken by condemnation for construction of the George Washington Memorial Parkway.

The property in question, which was owned by the Smoot Sand & Gravel Corporation, consists of a strip of land along the Virginia side of the Potomac River and opposite to or slightly upstream from the city of Washington, D. C. For purpose of description it will be taken that the river runs in a north-south direction. The land in question borders upon and extends about 2.6 miles along the river; its width varies from around 300 to 640 feet. Its total area is approximately 113 acres. The land is rough and precipitous, there being some places on it which are as much as 185 feet above mean low water mark on the river bank. At some points along the shore line of the river there are sheer precipices. At other points the land for a short distance back from the river is subject to flooding in times of high water. With these exceptions it may be said as a general description that the land rises steeply from the river to the top of a bluff, both the width of the tract and the height of the bluff above the river varying throughout its length. The western (or upper) boundary of the tract is approximately along the top of the bluff. The adjoining lands running back from the edge of the bluff and extending the length of the land taken by the Government are high class residential sections. A number of handsome homes with extensive grounds have been built and other portions of this adjoining land have been plotted as residential sub-divisions. In these lands adjoining and extending the length of the strip condemned there are some twenty or more different ownerships.

There are a number of ravines or gullies and three streams heading from the upper adjoining lands and running across the condemned tract down to the river. In spite of the narrow and precipitous nature of the property and its generally uneven and rough topography witnesses for both parties agreed that the best use to which the land could be put was for residential purposes. It was testified that along the upper (western) boundary of the land, at heights of from 125 to 175 feet above the river, there were certain places (described by a witness as "plateaus") where it was practicable to build homes. The estimates of the aggregate acreage of these available building sites varied from about 40 to 55 acres. It was agreed that about 25 acres of the land bordering the river was subject to overflow. The remaining acreage was in the cliffs, ravines, streams, etc., and could not be used.

The Government bases its appeal on several alleged errors which, stated substantially as set out in its brief, are

1. That it was error to permit the introduction by the landowner of evidence of the value at which the property was assessed for purposes of taxation.

2. That the Court erred in giving certain instructions and in refusing others as to the highest and best use of the property.

3. That the Court erred in instructing the jury that it should consider probable increase in value of the property after the date of taking.

4. That the Court committed error in restricting cross-examination of certain witnesses.

The defendant introduced evidence as to what the records showed as to the assessed value of the property and then presented as a witness one of the members of the Reassessment Board which had made the assessment of all real estate in the county, who testified that he had not participated in assessing this particular land, but it was the policy of the Board to appraise all real estate at its fair market value and then assess it for taxation at forty per cent of such value. All of this testimony was objected to by the Government but was admitted by the Court, who expressed the view that evidence of assessed value would be objectionable when proffered by the condemnor but not when introduced by the landowner. The instructions also told the jury that it could consider the assessed value of the land in arriving at the fair market value.

We are of opinion that the trial court was in error in the admission of testimony as to the assessed value of the property. The general rule is that such evidence is not admissible on the question of value in a condemnation proceeding, and we find no authority, and have been cited none, which holds the rule inapplicable when the evidence is offered by the landowner. Subject to one limitation, this rule applies to the introduction of such evidence by either party. The exception is where the assessment is based on a value fixed by the owner himself in returning the property for taxation. In such cases evidence of assessed value may be offered, not on behalf of the landowner but against him, to contradict or discredit any present claims of a higher value.

The following citations state the general rule. Lewis on Eminent Domain (3d. Edition) Sect. 668:

"The assessment of property for taxation, being made for another purpose, and not at the instance of either party and not usually at the market value of the property, is not admissible as evidence of value in condemnation proceedings. But a sworn return made by the owner to the assessor, showing the market value of the property as required by statute, was held admissible both to impeach the owner and as independent evidence of value."

In 22 C.J. 178 it is said:

"The general rule is that a valuation made by public officials for the purpose of taxation, especially when remote in point of time, is not relevant to aid a jury in assessing the value of land or buildings, unless such valuation is based on a statement by the owner, in which case it is competent against him, especially if his statement was made under oath."

The rule is stated in 31 C.J.S. Evidence § 182, p. 889 in substantially the same language as above, and in 18 Am.Jur. 993 we find:

"The assessed value of land, when it is placed upon the land by the assessors without the intervention of the landowner, is not admissible as evidence of market value; and no inference can fairly be drawn that it is correct from the failure of the owner to object on the ground that the valuation is too

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