United States v. CERTAIN PARCELS OF LAND, ETC., 8594.
| Decision Date | 20 October 1944 |
| Docket Number | No. 8594.,8594. |
| Citation | 159 ALR 1,145 F.2d 374 |
| Parties | UNITED STATES v. CERTAIN PARCELS OF LAND IN CITY OF PHILADELPHIA, PA., et al. ATWATER KENT MFG. CO. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Third 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 Atty. Gen., and Vernon L. Wilkinson, Atty., Department of Justice, of Washington, D. C., on the brief), for appellant.
Russell Conwell Cooney, of Philadelphia, Pa. (Frank H. Mancill, of Philadelphia, Pa., on the brief), for Atwater Kent Mfg. Co.
Before GOODRICH and McLAUGHLIN, Circuit Judges, and KALODNER, District Judge.
This is an appeal from a judgment entered in a proceeding to condemn 19.6 acres of land in the City of Philadelphia for defense housing purposes. Declaration of taking was filed, deposit of estimated compensation was made and judgment on the declaration was duly entered. A Board of View was appointed by the court and subsequently reported. The United States appealed from the award of the Viewers. Subsequent thereto the Atwater Kent Manufacturing Company filed its statement of claim in the proceedings, alleging the value of the property taken to be $253,000. At the trial the value on the property placed by the various experts varied from $88,600 to $236,356. The jury's verdict was for $190,000 upon which judgment was entered. The government appeals.
The case upon appeal is based upon objections to the testimony of Harold P. Mueller, called as an expert witness as to value by the former owner. The first objection is that Mueller was incompetent as a witness because he did not show sufficient familiarity with the general selling price of similar property in the neighborhood. This objection is not seriously pressed or, in any event, cannot be sustained. Other witnesses for the landowner had testified to a number of sales of property in the neighborhood but were careful to point out that these sales were mainly of land to be used for industrial sites while the land in question was, under the zoning rules, classified under Division C which excluded property for industrial use. Mueller testified as to knowledge of two sales of plots for residential purposes in the general neighborhood. On the affirmative side he was shown to be a registered professional engineer and a builder who for twenty years had been engaged in the building business in Philadelphia and had built and sold approximately 2,000 houses. He was shown to be an officer of the Home Builders' Association and as such knew what ground all the builders in the City were buying in the Philadelphia area. He had examined the official contour maps, was familiar with street improvements, the lines and grades of the property, the width of the streets, the transportation facilities, presence of schools and churches, etc. The question of his competency, in the first instance, was one for the determination of the trial court, 2 Jones on Evidence, 4th Ed. 1938, § 369; 2 Wigmore, Evidence, 3d Ed. 1940, § 561, and we see no abuse of discretion in allowing him to testify as an expert upon the question of value.
The second point raised by the appellant is alleged error in not striking out Mueller's testimony because it is said that his opinion of market value was erroneously admitted because it was based upon what the property would be worth to him. A number of Pennsylvania decisions are cited in support of the appellant's argument upon this point. The practice, pleadings, forms and modes of proceeding in federal condemnation cases are, by statute, to conform "as near as may be" to that of the state in which the proceeding is had. 40 U.S.C.A. § 258. On the other hand, the questions of substantive right, such as the measure of compensation, being grounded upon the Constitution of the United States, are not controlled by state law. United States v. Miller, 1943, 317 U.S. 369, 379-380, 63 S. Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55. In determining what compensation the owner is to receive for the land taken, this Court has recently held that evidence may be admissible which under the local state rule would be excluded....
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