United States v. Foster

• Decision Date: 04 November 1942
• Docket Number: No. 12312,12313.,12312
• Citation: 131 F.2d 3
• Parties: UNITED STATES v. FOSTER et al. SAME v. BUESCHER.
• Court: U.S. Court of Appeals — Eighth Circuit

131 F.2d 3 (1942)

UNITED STATES v. FOSTER et al. SAME v. BUESCHER.

Nos. 12312, 12313.

Circuit Court of Appeals, Eighth Circuit.

November 4, 1942.

John F. Cotter, Atty., Department of Justice, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., Bailey C. Webber, Sp. Atty., of Ottumwa, Iowa, and Vernon L. Wilkinson and Frank J. Dugan, Attys., Department of Justice, both of Washington, D.C., on the brief), for appellant.

John Hale and Don K. Walter, both of Burlington, Iowa, for appellees.

Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

These two proceedings were brought by the United States as plaintiff to condemn two parcels of land for an ordnance plant in Des Moines County, Iowa. The two separate proceedings were consolidated for trial, and are consolidated on appeal.

In No. 12,312, the land condemned, known as the Foster tract, consisted of a 235-acre farm located six miles west of Burlington, Iowa. On January 21, 1941, the Government, pursuant to Section 258a, 40 U.S.C.A., filed a declaration of taking and deposited $35,000.00, purportedly "ascertained by the acquiring authority to be just compensation." There were located on this tract a dwelling house of twelve rooms, approximately 75 years old, two barns, and other improvements. The jury returned a verdict finding the just compensation for the taking of the lands to be $42,000.00.

In No. 12,313, the land condemned, known as the Buescher tract, consisted of 132.52 acres out of a total acreage of 172.52 acres. Of the land taken, thirty-five acres was pasture and the remainder tillable though somewhat broken by gullies. It adjoins the Foster tract on the north. The declaration of taking filed was similar to that filed in connection with the taking of the Foster tract and recited that the value of the tract was ascertained to be $22,450.00. This was an improved farm, with a good, modern, five-room dwelling house, about eleven years old, a large barn, a chicken house, tool house, garage, windmill and silo. The dwelling house was equipped with electric lights, hot air furnace and a water supply. The verdict of the jury fixed the just compensation for the taking of the land at $31,250.00.

Expert witnesses called by defendants valued the Foster property at from $42,300.00 to $47,000.00. On redirect examination they increased their estimates of value to from $48,000.00 to $50,000.00. Two expert witnesses for the Government valued the property at from $21,625.00 to $23,270.00. Defendants' expert witnesses estimated the value of the Buescher tract at from $34,400.00 to $39,000.00, while witnesses for the Government estimated the value of the property at from $13,500.00 to $14,000.00.

On redirect examination, witnesses for defendants testified as to the value of the Foster land and then stated an added value for industrial purposes. Objections to this testimony and motions to strike were interposed by the Government, which were overruled by the court. Counsel for defendants were permitted, over objection, to interrogate witnesses for the Government as to whether they had considered certain sales of nearby land made to the Government for the ordnance plant. The questions specified the price per acre and the increase over the preceding sales of the same lands. The witnesses testified that they had not and would not consider such sales because they were not voluntary as the specific land had been designated as a site by the Government and the Government had to acquire it, and some of the prices paid were "far too high."

As to each tract, over appropriate objection, the court admitted in evidence the declaration of taking, together with evidence of the deposit of the purportedly "ascertained" just compensation.

The Government has appealed and seeks reversal on substantially the following grounds: (1) the court erred in permitting cross-examination of witnesses for the Government as to prices the Government had paid for other nearby lands; (2) the court erred in permitting evidence as to alleged value and adaptability of the land for ordnance plant purposes; (3) the court erred in admitting in evidence the declaration of taking containing the purported "ascertainment" of just compensation.

On cross-examination, certain witnesses for the Government testified that in arriving at the value of the lands taken they had not taken into consideration sales to the Government. Further cross-examination, over objection, developed that in 1938, a sale of the Hockett farm had been made for $17,500.00, and a sale of the same farm had been made to the Government in 1941 for $31,720.00. Testimony of the price paid by the condemnor for other tracts is not admissible. Simons v. Mason City & Ft. D. R. Co., 128 Iowa 139, 103 N.W. 129; United States ex rel. v. Reynolds, 5 Cir., 115 F.2d 294. In Iowa, evidence of sales of any kind is inadmissible as substantive evidence of value, but on cross-examination, it is held that a witness may be examined as to his knowledge of sales in the vicinity in order to test his qualifications as an expert. Watkins v. Wabash R. Co., 137 Iowa 441, 113 N.W. 924. Defendants do not seriously contend that the challenged evidence was, under the Iowa rule governing the admissibility of testimony in proceedings of this character, admissible, but they argue that the procedure adopted by Government counsel justified this method of examination. Counsel for the Government cross-examined witnesses for defendants as to other sales, quoting prices per acre. This, we think, was permissible as being proper cross-examination. This constituted no departure from the approved procedure and can not be said to warrant any departure by counsel for defendants. The cross-examination of Government witnesses, however, went into a forbidden field because it examined as to the prices paid by the condemnor for other tracts taken for the same project. The doctrine of estoppel to urge error can not justify extending the privilege of cross-examination into forbidden fields. The error, we think, was prejudicial.

In determining the value of land taken by eminent domain, the jury may consider all uses to which it is adapted and might be put, and may award compensation upon the basis of its most advantageous and valuable use. To warrant the admission of testimony as to value for purposes other than that for which it is actually used, however, regard must be had for the existing conditions and wants of the community, or such as may reasonably be expected in the immediate future. The uses considered in fixing value must be so reasonably probable as to have an effect upon the present market value of the land and a speculative value can not be considered. Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 709, 78 L.Ed. 1236. In order to warrant taking into consideration claimed special adaptability in fixing value, it must appear that the market value has been thereby enhanced. As said by the Supreme Court in Olson v. United States, supra:

"Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable, should be excluded from consideration for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value — a thing to be condemned in business transactions as well as in judicial ascertainment of truth."

A witness for the defendants, on redirect examination, testified that U. S. Highway 34 lies to the north of the Foster farm about a mile or two miles, and that there is a paved U. S. highway at its west. Road No. 3 is west and south of it, and U. S. Highway 61 is east and south. There is a municipal dock at Burlington, used for transportation of freight on the Mississippi River. At Fort Madison, eighteen miles south of Burlington, there is the Santa Fe Railroad. At Burlington, there are the Rock Island and the C. B. & Q. railroads. The C. B. & Q. runs in an easterly and westerly direction, north of the Foster tract. A branch line runs from...