United States v. Honolulu Plantation Co.

• Decision Date: 04 May 1903
• Docket Number: 896.
• Parties: UNITED STATES v. HONOLULU PLANTATION CO.
• Court: U.S. Court of Appeals — Ninth Circuit

122 F. 581

UNITED STATES v. HONOLULU PLANTATION CO.

No. 896.

United States Court of Appeals, Ninth Circuit.

May 4, 1903

J. J Dunne, U.S. Atty.

Hatch &amp Silliman, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This action was brought by the United States to condemn 561.2 acres of land bordering on Pearl Harbor, Hawaii, on which to establish a naval station. The fee of the land having been acquired by the government, the only question presented for trial in the court below was the amount of compensation to be made by the government for two certain leasehold interests in the land sought to be taken, held by the defendant Honolulu Plantation Company. One of those leases expires by its terms in the year 1908, and the other then commences and continues for a long period. The 561.2 acres sought to be condemned comprise a part of the 8,000 acres composing the plantation of the defendant Honolulu Company, but have never been cropped. The evidence shows that the larger part of the tract in question has been cleared of brush and rocks and plowed. The testimony of the company's manager, Mr. Low, is to the effect that about 342 acres of the 561.2 acres are valuable for the growing of sugar cane, but that the remainder is too rocky and hilly for that purpose. His estimate of the value of the leasehold interest in the 561.2 acres, however, runs into the hundreds of thousands of dollars, as does that of a number of other witnesses on behalf of the defendant plantation company, while the testimony on the part of the government tends to show that its value does not much exceed $20,000. The sole issue presented and tried in the court below was as to the value of the defendant Honolulu Plantation Company's interest in the tract sought to be taken, and upon that issue there were two trials, in each instance with a jury. The first trial resulted in a verdict fixing the value of the company's interest at $105,000, and on the government's motion for a new trial the court below held that the verdict was excessive, and that unless the defendant company remitted all in excess of $75,000 a new trial would be granted. This the company refused to do, so a new trial was awarded, was thereafter had, and resulted in a verdict fixing the value of the leasehold interest in question at $102,523. This the court below still regarded as excessive as shown by its opinion, but regarded the two verdicts as substantially the same, and the case as one proper for the application of the rule at times applied to concurrent verdicts. It therefore refused another trial, and adjudged the payment of the amount fixed by the jury as a condition to the taking of the defendant's interest by the plaintiff. The case was then brought here by the plaintiff.

It appears from the record that the Honolulu Plantation Company was organized in 1898, and has since been extensively engaged in growing cane and making sugar upon its plantation, embracing, as has been said, about 8,000 acres of land. To that part of it involved in this action it has never extended its operations further than to clear about 342 acres of it of brush and rocks, and plow the same, planting only a small patch in cane. From no part of the tract in question has it ever received any income, but, on the contrary, that tract has been, according to the undisputed evidence of its manager, a source of expense. That portion of the plantation in which the company's sugar mill and water plant are located, called the Halawa Valley, is, at its nearest point, from one and a quarter to one and a half miles from the tract sought to be condemned, and it is not contended that the taking of the latter would injure or in any respect lessen the value of the remaining lands or property of the company. But, as bearing on the question of the value of the 561.2 acres sought to be condemned, the defendant company was permitted to show, against the objections and exceptions of the plaintiff, not only the fact that it had in the Halawa Valley a mill in which such cane as might be grown on the tract in question could be ground, and a pumping plant from which such tract might be supplied with water, but the size and capacity of such mill and pumping plant; it being shown that the pumping plant has a daily capacity of 17,000,000 of gallons of water, and that the mill is a large one. It is said by the defendant in error, and truly, that the plaintiff introduced testimony to the effect that upon the tract sought to be condemned there was no water except one small artesian well of brackish water, and that it was entitled to show on cross-examination of such witnesses that the company had on another portion of its plantation water available for and capable of supplying the tract in question. This, we think, is quite true; but we can see no justification for the ruling permitting the defendant company to go into the question of the maximum capacity of such pumping plant or the size of its sugar mill. Those matters had no proper connection with the value of the land the government sought to take; and yet the direct tendency of the coupling of such heavy expenditures by the company upon its plantation with the question of value of the 561.2 acres in question may very readily have been to enhance the latter in the minds of the jury. Material evidence erroneously admitted in a trial before a jury is always reversible error, unless it can be properly said that such admission was, without doubt, without injury. Mexia v. Oliver, 148 U.S. 664, 13 Sup.Ct. 754, 37 L.Ed. 602; Boston & Albany R.R. co. v. O'Reilly, 158 U.S. 334, 15 Sup.Ct. 830, 39 L.Ed. 1006; V. & M.R.R. Co. v. O'Brien, 119 U.S. 99, 7 Sup.Ct. 172, 30 L.Ed. 299; Gilmer v. Higley, 110 U.S. 47, 3 Sup.Ct. 471, 28 L.Ed. 62; National M. Association v. Shryock, 20 C.C.A. 3, 73 F. 774; St. Louis, etc., Ry. Co. v. Needham, 11 C.C.A. 56, 63 F. 107, 25 L.R.A. 833.

But a still more pronounced error was committed on the trial in the court below in permitting, over the objections and exceptions of the plaintiff, testimony as to the value of the tract sought to be taken to the defendant, Honolulu Plantation Company. It was contended on behalf of that company that the tract in question was especially valuable to it, and several witnesses were permitted to testify, against the objections and exceptions of the plaintiff, to the value of the tract sought to be taken to that particular company. Thus, the latter was permitted to ask its witness Bolte this question:

'Q. Now, considering the property sought to be condemned in the state in which you saw it on the day that you viewed it, that it is in substantially the same state on the 6th of July, 1901, considering its situation and the uses that may be made of it and to which it was adapted, and assuming that the plantation has thirty-nine years as upon the basis of a crop payment-- that is, three and one-half per cent. of the sugar produced and the payment of the taxes-- the lease including other land, the minimum rent upon the other land which is not material, and assuming that there are 342 acres of cane land in the area sought to be condemned, what, in your opinion, was the value of the leasehold interests of that land on the 6th day of July, 1901, of the Honolulu Plantation Company? A. Four hundred and fifty thousand dollars. Q. What was its market value? Mr. Dunne: I move to strike out the testimony of this witness as to the value of this leasehold to the Honolulu Plantation Company, on the ground that it is settled law that what this may be worth to the Honolulu Plantation Company is not a fair test of the market value. The Court: The will not strike it out. Mr. Dunne: I refer to your honor's ruling on the former trial. The Court: I didn't rule it out. Mr. Dunne: We except. Mr. Silliman (to the Witness): What was the market value? A. That is what I said, I have not made up my mind. I think it ought to be two hundred and fifty or three hundred thousand dollars. The Court: Is there any difference between the value and the market value? A. Yes, sir; the Honolulu Plantation-- It would have a greater value to the Honolulu Plantation than to any one else. If it was put in the market there would be three buyers for this land-- the Ewa, the Oahu, and the Honolulu. But it has a distinct value to the Honolulu Plantation.' Cross-examination of C. Bolte:

'Mr. Dunne (to the Court): To save the rights of the government, I move to strike out the testimony of the witness relative to the value of this leasehold to a particular individual-- to the Honolulu Plantation Company-- on the ground that it is-- the compensation in (is)-- market value, and not the value which the property might or might not have to a particular individual. The Court: The Court will not strike it out. Mr. Dunne: We except.'

So, too, Mr. Low, the manager of the defendant company, was questioned by its counsel as follows:

'Q. Mr. Low, what is the value of the property sought to be condemned to the Honolulu Plantation Company? Mr. Dunne: I object to the question upon two grounds: First, on the ground that it does not seek to bring forth market value; and upon the ground, second, that it seeks to limit the value therein spoken of to an individual, to wit, the Honolulu Plantation Company, as distinguished from the market value. The Court: Let him answer the question. A. Four hundred thousand dollars. Mr. Silliman: What was its value on the 6th of July, 1901? A. To the Honolulu Plantation Company? Q. Yes. Mr. Dune: The same objection. The Court: The same ruling. Mr. Dunne: We except; and said plaintiff and petitioner now assigns said ruling as error. A. Four hundred thousand dollars.'

There was similar testimony given by other witnesses, under similar...