Wilkerson v. Grand River Dam Authority

• Court: Oklahoma Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Wilkerson v. Grand River Dam Authority, 161 P.2d 745, 195 Okla. 678, 1945 OK 83 (Okla. 1945)
• Decision Date: 06 March 1945
• Docket Number: 30906.
• Parties: WILKERSON et al. v. GRAND RIVER DAM AUTHORITY.

161 P.2d 745

195 Okla. 678, 1945 OK 83

WILKERSON et al. v. GRAND RIVER DAM AUTHORITY.

No. 30906.

Supreme Court of Oklahoma

March 6, 1945

Rehearing Denied Sept. 18, 1945.

Appeal from District Court, Mayes County; N. B. Johnson, Judge.

Proceeding in eminent domain by Grand River Dam Authority, a corporation against Winifred T. Wilkerson and others, to condemn land for public use. From judgment on verdict of the jury, I. G Wilkerson, administrator of the estate of Winifred T Wilkerson, deceased, and others, appeal.

Affirmed as modified.

Syllabus by the Court.

1. Interrogation on cross-examination relative to prior sales by a witness to test his credibility does not contravene the rule with respect to proof of value by comparison.

2. The sufficiency of a showing to establish qualification of a witness as to his knowledge and special experience to testify as to value of land is a matter which rests largely in the discretion of the trial court and in the absence of a showing of substantial prejudice resulting the ruling of the trial court thereon will not be disturbed on review.

3. While all beneficial uses to which land may be put are proper to be shown and considered in a determination of the value of the land taken or injured in an eminent domain proceeding evidence to establish additional damage is not permissible and is properly excluded.

4. Requested instructions upon the theory of damages in addition to those sustained as the result of a taking and independent thereof were properly refused.

5. Refusal of requested instructions which are substantially included in instructions given is not error.

6. The measure of damages in condemnation proceeding where private property is taken in the exercise of the right of eminent domain is the market value of the property actually taken at the time it is so taken and the impairment or depreciation in value of the remainder and where the instruction of the court substantially sets forth such measure a refusal to give additional instructions thereon is not erroneous.

7. It is not error to refuse an instruction on an abstract proposition of law which has no application to the matter under consideration.

8. An instruction which, standing alone, appears to be erroneous will not work a reversal unless it appears it has misled the jury.

9. A view by the jury of property, the subject of the action, is discretionary with the trial court, and his ruling thereon will not be reversed on appeal in the absence of a showing of abuse of discretion.

Wilbur J. Holleman and Lashley & Rambo, all of Tulsa, and Harve N. Langley and Ben L. Murdock, both of Pryor, for plaintiffs in error.

R. L. Davidson and Edw. P. Marshall, both of Tulsa, for defendant in error.

PER CURIAM.

This is an appeal by the condemnee from a judgment of the district court of Mayes County rendered on the verdict of a jury in a condemnation proceeding.

The proceeding was instituted by Grand River Dam Authority, a corporate instrumentality of the State, to condemn 341.88 acres of land which constituted the most valuable portion of a grain and stock farm consisting of 633.7 acres and which was owned by Winifred T. Wilkerson. The commissioners appointed to view and appraise the damage which would result from the taking of the 341.88 acres fixed the sum of $20,370.75. Winifred T. Wilkerson declined to accept the award so made and filed objections thereto and demanded that a jury assess the damage. Thereafter trial was had to a jury which returned a verdict assessing her damage at the sum of $21,250. Motion for new trial was filed in due time and during its pendency Winifred T. Wilkerson died whereupon the cause was revived in the name of her administrator. The motion for new trial was overruled and this appeal perfected. As a matter of convenience we will hereafter refer to the parties as they appeared in the trial court, that is, the Grand River Dam Authority, as plaintiff, and the administrator of the estate of Winifred. T. Wilkerson, deceased, as defendant.

Error in the admission of exclusion of evidence and in the refusal to give a number of requested instructions and in certain instructions given are the grounds urged for reversal of the judgment below.

John Bogle, a witness for the defendant, had testified that defendant's lands were worth from sixty to seventy dollars per acre and on cross-examination was asked whether or not he had sold certain lands to the plaintiff for which he had received less money. The defendant says this was error for the reason that it constituted evidence of value by comparison and in violation of the rule as announced in 22 C.J. 760; 32 C.J.S., Evidence, § 593; Dean v. Hawes, 29 Cal.App. 689, 157 P. 558; In re Graves, D.C., 182 F. 443; Ft. Worth & D. C. Ry. Co. v. Hapgood, Tex.Civ.App., 201 S.W. 1040. We are unable to agree with the contention so made. The purpose of the cross-examination was to test the credibility of the witness and not to prove value. This was permissible. See 70 C.J. 649; Indianapolis & Cincinnati Traction Co. v. Shepherd, 35 Ind.App. 601, 74 N.E. 904. Defendant further states that it was error to permit one Clark A. Yeats, a land appraiser, and Dr. H. J. Harper, a professor of soils at Oklahoma A. & M. College, to testify regarding the value of the lands involved from their inspection and based upon their knowledge and peculiar experience. Our attention is directed to Mauvaisterre Drainage & L. District v. Wabash Ry. Co., 299 Ill. 299, 132 N.E. 559, 22 A.L.R. 944; Michael v. Crescent Pipe Line Co., 159 Pa. 99, 28 A. 204; Wichita Falls & N.W. Ry. Co. v. Munsell, 38 Okl. 253, 132 P. 906 as sustaining the proposition that the foregoing witnesses were not qualified to testify. An examination of the cited cases will reveal that they involve situations where the witnesses admittedly had no knowledge of and had not seen the property concerning which they were attempting to testify. The case at bar presents an entirely different situation. Both of the witnesses were shown to have knowledge and peculiar experience which they had applied on inspection to the lands here involved. See Wichita Falls & N.W. Ry. Co. v. Harvey, 44 Okl. 321, 144 P. 581.

Whether witnesses are shown to be sufficiently qualified to testify is a matter which rests largely within the discretion of the trial court and unless it is shown such discretion has been abused to the substantial prejudice of the complaining party this court will ordinarily not interfere with the ruling of the trial court thereon. It is not shown that defendant was prejudiced by the admission of this testimony.

Defendant next complains of the refusal of the trial court to admit the introduction of evidence relative to inability to maintain a herd of twenty-five cattle on the lands which would remain after the 341.88 acres had been taken as said herd had theretofore been maintained and in this connection defendant urges error in the refusal to give its requested instructions Nos. 5 and 15. The evidence to which objection was sustained was offered to establish a damage over and in addition to that which would result from the taking of the 341.88 acres and the damage which would be done to the remainder of the lands. Defendant contends that this evidence was admissible under the authority of Blincoe v. Choctaw, O. & W. R Co., 16 Okl. 286, 83 P. 903, 4 L.R.A.N.S., 890, 8 Ann.Cas. 689; Arkansas Valley & W. Ry. Co. v. Witt, 19 Okl. 262, 91 P. 897, 13 L.R.A.N.S., 237; Oil Fields & S. F. Ry. Co. v. Treese Cotton Co., 78 Okl. 25, 187 P. 201, and that it was error therefore to refuse requested instructions based thereon. The evidence to which objection was sustained did not show any of the elements involved in the cited cases. Under these circumstances any discussion of the rule enunciated in the foregoing cases becomes unnecessary. Defendant was not entitled to recover damages in addition to those which would be sustained as a result of the taking of the land and the injury done to the remainder and evidence offered to support a claim for damages in addition thereto was properly excluded. City of Cushing v. Buckles, 134 Okl. 206, 273 P. 346. For the reasons previously stated the requested instructions were properly refused. See Merchants &...