*1 491 appeal As on an appellant from the itself fully could presented points, have these two cannot appeal refusing judgment. from the order to set aside that (Mantel 758]; 135 315 Mantel, Cal. Pac. Bell v. [67 377]; Solomons, (1912) 162 Reyn v. Pac. [121 619]; Reynolds, olds v. Hall Imperial Co., Water appeal is dismissed. Conrey, J., J., P. Houser, concurred. Appellate No. 7460. District, January Second Division One.
[Civ.
1932.] THE Municipal OF (a Corpora CITY LOS ANGELES
tion), Appellant, al., Defendants; L. v. A. DEACON et Corporation) G. H. DEACON (a INVESTMENT CO. al., Respondents. *2 Werner, City P. Attorney, Erwin Schrader, Frederick von City Attorney, Assistant Arthur W. Nordstrom and C. N. Deputies Perldns, Attorney, Appellant. City for O. Clark, Blodgett Oliver Rush M. and Victor T. Watkins Respondents. for
BISHOP, J., pro tem. The admissionof evidence as to profit operating gravel the net made in a rock plant being the property action, condemned in this was error opinion, requires which, judg- it is our a reversal of the Mr. a Newberry, ment. witness the defendants, and himself one of them because of his interest as a sublessee premises, of the concerning testified detail rich deposit property; of rock and sand on the outlined the commer- cial future the rock business California, southern demand, stating the extent of the the limits supply, advantages plant possessed economic his over along others, much Then, and related more this line. over objections timely and while still on direct examination, he permitted profit to make statement his net during plant year 1928, paying after rent lessor to the owner. and rent only testimony legitimate object of all this was to question: answer to the one What
obtain an market condemned, property being say, “that value of the highest price money estimated in terms of which the market, with bring exposed open in the if for sale would buy purchaser, in which find reasonable time allowed purposes to which knowledge uses and ing of all of the (Sacra capable”? it was adapted and for which Heilbron, R. mento etc. question to this arriving In at an answer judgment would ordinary person himself, a business preliminary know to a number
want the answer at just want to know inquiries. possible he would It county assessor. figure property by the was assessed put what value He find it of interest to know recently upon appraisers involved by the when it was interested, certainly proceeding. He would be probate any sought determine, in if it was the market value he in the property, and offers that had been made for the similarly situated had price property at it and likely, would, be interested recently been sold. He most use profit had in the amount of been made put. to which the had been *3 taken into conceding But that all these facts would be determine the market endeavoring one consideration property, is, it the settled piece nevertheless, value of a of proven may be for the law of this state that none of them pro purpose establishing market value. of witness, recognized proper, for the as is cedure which is expert, qualified an an when found to be as state, first, is, in the market value judgment, (1915) (De City, property. Freitas Town Suisun v. of this, 553, 555].) 170 263 On the examination Cal. Pac. [149 may property chief, For what sum the it not be shown: (San Mayne, (1890) etc. Co. v. 83 Cal. assessed Jose R. Edmands, ; (1920) Water v. 566 Yolo etc. Co. Pac. 522] [23 Lawley, App. 463]; McNulty 444 Pac. 50 v. Cal. [195 App. 50]); 747 nor Pac. the value [184 probate appraisers proceeding upon it placed Feldman, (see Co. v. Cal. Central R. Pacific 849]); price for the 303 Pac. nor offered [92 Pearson, (1868) (Central R. v. Pac. Co. being condemned Harlin, (1893) 247; City Ana v. 99 Cal. 35 Cal. Santa of Hopkins, (1930) ; Trust Co. v. Pac. Merchants 538 [34 224] App. 1072]); yet 473 Pac. nor that offered 103 Cal. [284 neighborhood Valley (Spring paid or lands 494 Drinkhouse, (1891)
Waterworks v. 92 528 Cal. Pac. [28 Brizzolara, 681]; City Obispo (1893) San v. 100 Luis of Cal. 434 1083]; Ross, (1915) Pac. Estate 171 Cal. [34 of 64 1138]; City Angeles (1927) Hughes, Pac. Los v. [151 202 Cal. 737]; 731 Pac. Reclamation Dist. No. 730 v. [262 Inglin, 31 (1916) 1098]; Cal. 495 App. Palladine Pac. [160 Imperial v. Valley Assn., (1924) App. F. L. 65 Cal. 727 291]; Pac. Dickey Dunn, App. v. (1927) [225 80 Cal. 724 770]; Pac. (1927) Fishel Co., Inc., [252 v. M. Ball & F. 83 App. 128 493]; Pac. Merchants Trust Co. v. [256 Hopkins, supra; leading and see case of Central Pac. R. Pearson, supra.) regard “He asked should not he ing specific (De facts the examination in Freitas chief.” v. Town City, supra.) cross-examination, Suisun On however, questions may be asked about various matters. these (Assessment probate appraisals—Central Co. R. Pacific Feldman, supra; prices v. paid proper other offered and Bay Utility ties—East Kieffer, (1929) Mun. Dist. v. 99 Cal. App. 240 Pac. Pac. 178]; 279 and see Central [278 Pearson, supra; Valley Pac. Spring R. Co. v. Waterworks Drinkhouse, supra; City Harlin, v. supra; Santa Ana v. Ross, supra, Estate and Reclamation Dist. 730 No. v. Inglin, 495 (1916) App. 1098].) Pac. [160 etc., When is sales, evidence received cross-exami nation, solely purpose however, testing is for the testimony, value of the witnesses’ not itself evi property. (City Obispo dence value of the San Luis Brizzolara, 1083]; Pallad Imperial Valley Assn., ine v. F. L. Cal. App. any Nor is the different on opening than on the redirect examination examina specific chief, though even some tion sales have (Reclamation gone during been into the cross-examination. Inglin, supra.) 730 v. Dist. No. *4 principle firmly
With the thus established that market proven by to be sales value' is not evidence of of other price offered, considerations, and properties, kindred we exception surprised should be to find an made the matter may or not of that which be a clue search for value, is, profits market that the net derived from being An property. exception use that is made of the find in made, applies, is not same as Stock- ton etc. Galgiani, R. Co. v. The fol- lowing- quotation opinion (p. Cal.) of 49 from the holding: makes clear its appears testimony
“2. It respondent Galgiani others, cotenants, planted and was vineyard. During vines and with cultivated used as a and progress testimony touching of the the value of this land, objection allowed, against witness petitioner, average his estimate of ‘the annual net profits per strip acre from by taken the railroad com- pany’. The evidence clearly inadmissible. The fact to be ascertained was the value of the land at the time taking. It is not allowed to arrive at this fact proof of annual net from particular derived profit use. any year The depend upon many would and varying circumstances, such as the nature of the season, the labor, price of the condition supply of the market as to and respect particular demand in to the etc. A product, valua- tion derived from conjectural such evidence would and speculative and would proper not form a basis for an damages.” estimate ruling given reasons for the apply equal force to presented the situation' by the case accept before us. To a statement of net as a fact to be taken into consideration in arriving value, at market necessity opens the door: investigation To an into the accounting system operating of those plant; into the original costs of installation and replacements; ques- raises tions of efficiency skill; and and leads into innumerable alleys. other side roads A given who has an witness opinion as to value, market may be asked on cross-examina- if tion he knew profit net importance, if any, he it, questions attached to but such permitted opinion test the value of the ventured, and not because the sum involved to be made use of jury the court or as a for computing basis market value. What is said in De Freitas v. Town City, Suisun 553], about income, net unmistakably dictum, the decision in being that case that an gross based on income improperly Moreover, received. the correct method of examining witness chief is out- opinion, lined from which we conclude not saying, even least of all deciding, that *5 direct examination the amount of net income would be a proper subject inquiry. It from appears the annotation in 65 American Law Reports, that to California is be among minority numbered jurisdictions the which disapprove of evidence of net income proof substantive as value, of market among it is reject- as also minority the in ing (Note, evidence of proof. other sales as such Cas. Ann. 1916E, p. 598 seq.) But such find our law we to be.
Concluding, therefore, that error to receive objection the evidence to made, which we are next question: concerned with the prejudicial? the error Was city’s We highest believe was. The witness testified that (Its his opinion in total $58,913. the award be should $9,054.) lowest witness said Three of the defense witnesses gave figures ranging '$97,064 $114,273, to two $131,715 $146,440 advanced as amounts the the defend $119,490. ants should receive. The court awarded them was evidently plaintiff’s It theory defendants’ and not the governed. $6,080 values which The net year $40,268 and the that received sublessee his award, quite as share total in consistent, probable to view the evidence as term of future , operations. Moreover, heed to the statement objection the trial ruled on judge time he (Gregoriev Co., v. Northwestern Pac. R.
App. 84]). His attention had been directed cases, Galgiani, (1874) to two Stochton etc. R. Go. v. above, Stockton”, very and “a case from 139, noted late judge speaking which the trial in to referred “Oak following in “I case” statement: think that going is in case. I overruled this Oakland am California page only your going I read call attention am foregoing quotation lines: ‘The a few reference n adjacent “damsite and lands” is understandable when court, connection with the instructions of the trial read probable jury which effect told that being put uses to such be which fixing value of defendants’ land.’ That considered appellate your was affirmed court. So this it objection apparent will be overruled.” Prom Galgiani believed that that trial longer controlling, the true rule was was no case fixing the value probable profits might considered only believed, reasonable If he of defendants’ land. so gave weight the evidence us he to believe that ruling. received “this Oak about word We not conclude without should *6 read a Page 565, trial court from the which land case”. where App. Dec., in volume passage, is found App. 70S Ellingwood, City Stockton v. of quoted now The words 228], reported. first report, (96 the last-named appear App.) of page on Diego quotation Land refer back a San and 604, 25 Neale, 50, R. A. L. had quotation to in the The instructions referred 977]. given in case, not the by the trial court in the Neale been instructions, Supreme case. the Court Stockton Of these Cal.): (p. the 64 of 88 “But these in Neale case said instructions, given defendants, request of the were erroneous, they, effect, methods because indorsed the calculations, witnesses, employed and by the defendants’ jury—at jury undoubtedly informed the least so under the might they stood it—that find value be plaintiff, situation, worth to the or another in its might by this a calculation of the and that determined rights water at probable from sales of and water prices.” (p. prospective Cal.) 62 of 88 Elsewhere propo following “The establish the had stated: authorities proper to into consideration ... it is not take sition that land, from the use which result profits depend upon especially expenditure where the large money carrying contemplated out sums enterprise.” opinion
For advanced, the reasons judgment and should be is reversed. J.,
Conrey, P. concurred. judgment. HOUSER, I concur J., Concurring. “righteous- particularly impressed I am Not that I to the rule it, (contrary because believe that ness” jurisdictions) is in accordance with the many other expressed state, as this of the law of adopted policy opinions Supreme appellate several Court and courts, to which ren- attention is directed dered my herein. But authority, aside from such mind incongruous ordinary to, quite with, and our at variance justice judg- notions relative the administration ment simply solely because, according must be reversed game” to the “rules of the pertaining certain facts pertinent eoncededly conditions, relevant the effect of evidence, present would be but to from consideration by of which the uMimate truth be ascertained court, “erroneously” were admitted in evidence. petition rehearing
A this cause denied Appeal the District January 30, Court of on and an application by respondents to have the cause heard Supreme Court, after in the District Court of Appeal, Supreme denied Court February Appellate No. 7941. First District, January *7 [Civ. Division Two.
1932.] LINCOLN, B. Respondent, FRANCIS NAT L. WILL Jr.,
IAMS, al., Appellants.