United States v. Wise

• Decision Date: 12 November 1942
• Docket Number: No. 4984.,4984.
• Citation: 131 F.2d 851
• Parties: UNITED STATES v. WISE.
• Court: U.S. Court of Appeals — Fourth Circuit

131 F.2d 851 (1942)

UNITED STATES v. WISE.

No. 4984.

Circuit Court of Appeals, Fourth Circuit.

November 12, 1942.

Dwight D. Doty, of Washington, D. C., Atty., Department of Justice, (Norman M. Littell, Asst. Atty. Gen., Vernon L. Wilkinson and Charles Goodwin, both of Washington, D. C., Attys., Department of Justice, on the brief), for appellant.

Tazewell Taylor, of Norfolk, Va., for appellee.

Before PARKER, SOPER and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is a proceeding brought by the appellant, United States of America, in the District Court of the United States for the Eastern District of Virginia, at Norfolk, in August 1941 to acquire land owned by one Henry A. Wise. The land was to be used in the establishment of the harbor defenses of Chesapeake Bay, Cape Charles, Virginia. The Government on the same day filed a declaration of taking and deposited $41,000 as estimated compensation for the property.

After the usual proceedings a trial was had before a jury in January 1942 to ascertain the just and fair compensation for the property. After the taking of evidence and the view of the property, the jury returned a verdict fixing, its value at $86,750. No motion was made to set aside the verdict and in February 1942 the verdict was approved by the trial judge and judgment entered for the owner of the property. From this judgment this appeal was brought.

The property in question was used by its owner as a country estate with a residence and a number of appropriate outbuildings. The grounds were landscaped and a road was built by the owner. It is conceded by the Government that the best use of the property was as a country estate, for which the owner used it.

A number of witnesses were examined on behalf of both the Government and the owner, including experts, and a day was spent by the jury in viewing the property.

The appellant argues that error was committed by the trial judge in admitting evidence as to the reproduction cost of structural improvements on the property; in admitting evidence of the reproduction or replacement cost of trees, shrubs and plants and in admitting evidence relating to the original cost of building a road, a telephone line and a power line to the property.

On these points the appellant relies on a number of cases, among them the following: Devou v. City of Cincinnati, 6 Cir., 162 F. 633; Morton Butler Timber Co. v. United States, 6 Cir., 91 F.2d 884; United States v. Meyer, 7 Cir., 113 F.2d 387; Department of Public Works v. Hubbard, 363 Ill. 99, 1 N.E.2d 383; City of Los Angeles v. Klinker, 219 Cal. 198, 25 P.2d 826, 90 A. L.R. 148; Joint Highway District No. 9 v Ocean Shore R. Co., 128 Cal.App. 743, 18 P.2d 413; Vallejo & N. R. Co. v. Home Savings Bank, 24 Cal.App. 166, 140 P. 974; McSorley v. School District of Avalon Borough, 291 Pa. 252, 139 A. 848; Hervey v. City of Providence, 47 R.I. 378, 133 A. 618; Jacksonville & S. E. R. Co. v. Walsh, 106 Ill. 253; Forest Preserve District of Cook County v. Chilvers, 344 Ill. 573, 176 N.E. 720.

The contention of the appellee is that this evidence, admitted as it was under repeated warnings by the trial judge to the jury that it was only for the purpose of aiding them to arrive at the true market value, was properly admitted. In support of this contention the appellee cites, among others, the following cases. In re City of New York, 198 N.Y. 84, 91 N.E. 278, 41 L.R.A., N.S., 411, 139 Am.St.Rep. 791; In re North River Water Front, 219 App.Div. 27, 219 N.Y.S. 353, 361; Banner Milling Co. v. State, 240 N.Y. 533, 148 N.E. 668, 41 A.L.R. 1019; Mayor & City Council of Baltimore v. Himmel, 135 Md. 65, 107 A. 522, 524; Levenson v. Boston Elevated R. Co., 191 Mass. 75, 77 N.E. 635; Ranck v. City of Cedar Rapids, 134 Iowa 563, 111 N.W. 1027; United States v. Becktold Company, 8 Cir., 129 F.2d 473.

An examination of the cases shows some conflict but there is no doubt that the overwhelming weight of authority is to the effect that the admissibility of evidence of this character is largely governed by the peculiar circumstances of each case and rests to a great extent in the discretion of the trial judge.

Reliance is placed by the appellant on the decision in Devou v. City of Cincinnati, supra. An examination of that case shows that the circumstances are very different from those in the instant case. In that case it was clearly improper to admit evidence as to the cost of an obsolete building in a neighborhood that had greatly deteriorated since its construction. The court in the Devou case held that evidence of this character might be proper under certain circumstances.

In a recent case, United States v. Becktold Co., supra, the court, after reviewing a number of decisions, including the Devou and other cases relied upon by the appellant here, held that evidence of this character was properly admitted and that in...