*1 County Davidson Board of Education
v. Trustee Bank, First American National (Nashville, Term, 1956.) December
Opinion April 1, filed 1957.
Rehearing May 3, Denied 1957. *2 County Attorney, Jr., D. Davies, Nashville, Elmer petitioner.
Gracey & Buck Nashville, James C. Summers, respondent. *3 opinion
Mr. Justice delivered the of the BurNett Court.
This a condemnation case which the Board of sought Education to condemn 16.55 acres of a 52.5 acre building erecting purpose a tract of school land County. in Davidson jury property
The for the taken view fixed the value damages. On $32,387 at allowed incidental $8,097 as appeal trying the case Circuit Court that court jury property with a a in favor of rendered verdict taken, found owner for $35,000 for actual land by and balanced that incidental were offset appeal Appeals incidental benefits. On the Court holding erred that court Court reversed that property excluding plat which was offered support the owner evidence too, there was no any incidental bene- verdict of the that there were damages. Petition for fits which the incidental offset seasonably granted, briefs filed, certiorari was filed arguments here we now the matter heard have determination. assignments error,
There of which are two both largely hinge assignment around is to the the first Appeals concluding effect erred in that the Court of County’s objection sustaining the trial court erred plat to the introduction of on behalf of assignment holding owners. second is to Appeals there wherein that Court held that Court support no evidence to verdict benefits. *4 taking property the to of this Prior Board of purposes 52.5 Education for school land consisted of plotted been build- It had not subdivided into acres. through prior ing that etc., lots to the time with roads, plat objected (objection that taken. The was to was prepared by court) was trial an was sustained in
13 engineer prepared witness in the lawsuit was for the purpose persuasion admitted of illustration and in con- proceedings. nection with these condemnation All experts on behalf of land owner who were geared testimony on subdivisions, the sale of their land, plat conception to this to this that subdivision prior taking which was not in existence to the property by the was school, subdivided into lots. The offering plat of this evidence in there- connection proposition with plat was based on that the evidence in attempting connection therewith was to tie particular this tract of land a down to subdivision and one imaginary that was not in existence but was and was only purpose pro- created for the of this condemnation ceeding. theory judge It trial objection County sustained the of the to the introduction plat. important Thus it is that reach we question in this lawsuit.
In Tennessee the “fair market value” rule as to property being the value of Alloway condemned holds. v. City 88 Nashville, Tenn. S.W. meaning
L.R.A. 123. The evaluation rule as stated jury by judge to the the trial was as; piece “fair, cash market value of a is might value party willing if derived a to piece property, sell but does not have sell, to party willing buy, who is but he does not to, have buy property.” he is not forced This is a correct statement rule. say then went on that: considering
“in what is fair market value of the
property, question, you on the will take into date capabilities consideration its and may uses and those to which he best suited adapted every element has other value proved by preponderance been of all evidence to taking.” exist as of the date correctly then as to instructed damages are incidental and what incidental benefits are told, then you may any you “that oft set incidental if benefits, against any damages, any you find, if find, you put way, and vice versa. Or it in another can pit against against damages damages benefits benefits.” they they
And were then told that could either not offset against benefits or value actual property. charge On such a correct which is almost language Alloway verbatim case, this Court in the supra, arrived at the conclusions set in the out paragraph first hereof. point have no case
We on the direct here involved question, Orgel In on State. a recent work On very Eminent Domain, 1953, Valuation Under author succinctly ably questions here involved. reasons page commenting Volume we In Sec. how says: market at fair should arrive value he “It is obvious use that the to which the farmer putting now the land does not alone determine its equally market value. It is obvious can- value be found summation of the each not values for separate mutually since use, some these uses are anyone familiar And it is exclusive. no less obvions prospective capital with nature value, tbe futurity fully uses both must discounted they may not materialize.” the risk that *6 adopted In we have the view that this State (Allow ay City of v. “value in view all available uses” proper supra) phrase in is the valua Nashville, use of phrase against is the for best use” tion as “value by minority the the are bound States. We used of majority the “value in is that that we consider view, that It well said we use view of available uses”. all jury against awarding phrase to warn particular In Common a use”. Conness v. “value for 184 69 N.E. that Court said: Mass. wealth, estate awarded real taken is “The sum be for property, having reference to fair value of the market any adapted. for all the it is Its value uses which although may special purpose be test, it is not the prop- ascertaining of with a view considered, any erty market use for for is worth bring would the most.” supra, Orgel Valuation, Section
The author On pertinent very page 146 makes statement: on testimony admitting are “The courts unanimous adaptability property for use and on against con- restrictions the familiar that, save for speculative’ highly contin- sideration ‘remote and a gencies. in most that But has been held cases may adaptability into himself translate not witness qualified money properly value. A a of its statement opinion property may express has that witness an 16 explain, may
a ‘fair market $10,000, value’ of lie particular both examination, on direct on cross qualities property him to conclude -whichlead ordinarily that it is he is worth this not amount. But permitted testify property ‘has value building purposes’ $10,000 lot or ‘for best ’’ use ’. Alloway proper When we read the where the case, question page page stated on 515 of 88 123 of Tenn., as to as to the S.W., what witness should asked summary value fits find we above holding. our page
As is said further on same work quoted last above from: * *
“* *7 apparent employing the aim of the courts in the ‘all available formula uses’ is to avoid overvalua- by preventing jury giving tion from excessive weight purposes for the value for which the being is condemned.” judge This was ascribed reason of the trial sus- for taining objection plat this the admission of and the clearly evidence based thereon. We think under reason authority and herein cited that the trial eminently fair his and correct in reasons conclusion. major-
This is rule which in in Tennessee is the effect ity rule. All available uses and not the value for particular approval use rule meets author, Orgel, quoted says commenting above from. He iton likely rough average “is that the to strike some higher figures between the and lower which believes at propertjr might purposes.” that the be sold for various Clearly yardstick reasoning and this meets our property being to the values of condemned. Supreme Court California in Sacramento
Southern R. Heilbron, Co. v. P. 408, 412, 104 Cal. expressed 981, have to our here minds we are best considering. quote adopt We rule be fol as the following lowed this Slate from succinct statement the California Court: by
“It is seen, therefore, that this its latest court definitely aligned great utterances has itself with the majority holding courts must that be measured the market value of the land at the time it was the test is value for taken, not special purpose, but fair market value of land naturally purposes in view of all it is to which adapted; that, therefore, while evidence that may purpose ‘valuable’ for that or another always given freely be should received, be .money, price, value in terms of which one or may bring another witness think would the land specific purpose this or that or the not admis- other determining sible as an element in value, market opens for such wide unlimited evidence the door to speculations concerning problematical vagaries prices contingencies might possible under paid land, the mind of the distracts single question from market value—the —that *8 persons highest sum worth is generally, purchasing open in in market considera- adaptability any proven of the land’s use.” tion exactly concise statement think: this is We what Alloway supra, case, in the this meant Court because 18
property really has but market it value; one did not have a value for one use and another for another but con only demnation has one one market value which may by questions be arrived at forth as set in the Alloway eliciting case and answer's from the of expert things witnesses on different we have hereto as fore herein shown. When it from stand looked at point clearly map (it obvious us that was for purpose litigation) But inadmissible. may may be asked and as state hereinbefore they sundry shown how arrive at various and values of property, its benefits, In etc. further question comment a on this we take statement from Pennsylvania Supreme Pennsylvania V. Court S. Cleary, 442, R. Co. v. 125 Pa. 17 A. follows: “The are to value the tract land only. They determine are not to how it could best be building conjecture lots, into divided nor to how fast they price per specu- be sold, what could nor at Alot. price deciding lator investor, what he could pay, proba- would afford consider the chances and actually existing. bilities situation as then A thing. They inquire should do same are not to speculator might a be able what to realize out present purchaser resale in but future, pay willing for it in the would it is condition now in.” adopted approved by statement has been
This Appeals Circuit United States Third Court in United Land, 3,544 Acres 3 Cir., 147 F.2d States v. 596, 598, Of Supreme Court Utah as well as in State v. Tedesco, Utah 2d P.2d 1028. *9 Alloway fifty years ago, Court,
In the above this case said: you determining
“In market cannot value, cash single general out from value the elements of value the especial purpose; you are to an but consider all up market value,— constituent elements that make availability, adaptability, capability for differ- its (88 124.) purposes.” 510, 13 S.W. ent uses Tenn. Alloway exactly we This statement from the case trying have to elaborate what as been heretofore and on excluding plat we the trial held in conceive proof showed The herein as offered both herein. sides potential use of land for subdivision residential jury purposes con- an element that the could and was surrounding history of the sider. Its and the location was offered consideration and was taken into area jury by both The conflict sides. evidence before attempts owner comes wherein course hinge proof map on its the value and to introduce purely purpose as that piece for the one land doing not this we think that a subdivision. so In admissible. obviously Appeals when error in
The Court of it said: expert should think that
“We also testify permitted about, and been have testimony, their allowed consider have been should their involving that entered into elements all the of the land as well respective taken, value estimates of remaining benefits to as incidental and/or highest prospective present its based land, use, which, best in this instance was he shown purposes.” subdivision lots for residential into complete before had them evidence in consequences taking taking. They *10 the and the had of such drawings, photographs opinions and the of some three or analysis four real estate men for their and consideration. jury, apparently by accept any their verdict did not particular expert’s theory they thing took but whole by using as judgment offered both sides and their own things on such as well as evidence introduced and from this arrived at their verdict. The intro evidence property ranged way duced as to the value of this all from $64,600 down to $30,000. around wit Some damages nesses testified as to what the incidental were why they thought property that the owner dam was aged way. in this Other witnesses seem to think did not damages that there were incidental and that the inciden tal benefits damages. would offset those One of the wit particular nesses we thought remember the other damaged adjoined was prop because it school erty, while thought another help witness that this would great it deal. it is So that we have some evidence to as damages incidental and incidental benefits well as as jury supposed fact that are to be sensible men experience they had experi were entitled take this ence into evaluating consideration in the evidence of By these doing various witnesses. thus so there ample support evidence to in its conclusion that the incidental benefits offset incidental they they then fixed were instructed the court the full value of the land taken as $35,000. Ap- judgment of the Court
The result is that peals court affirmed. reversed and that is Petition to Behear.
On presented petition rehear have been with We ably argued again question arguing this cause so original orally is brief: “that there before and in us support verdict no substantial evidence to * * offsetting inciden- benefits incidental as to damages. tal again seriously very earnestly
It is contended any benefits offset fails the record to show damages. case too, certain of incidental And evidence R., 120 Tenn. S.W. Vaulx v. Tennessee argued again brought to our attention and is applicable rule here. therein stated *11 upon question presented the in The rule relied and the where motion new Yaulx case was that there is sufficiency sup challenging the the evidence to trial weigh duty judge port the is the trial to the it verdict, preponderates in satisfy it the evidence and himself that grant a new not, if does favor it verdict, or, the rule have obvious and reasons for the are trial. again in authorities time various been discussed Upon opinion reading State, Curran v. this State. Grey 4 v. Pickwick 157 Tenn. and Carter 7, S.W.2d rule Lines, 166 Tenn. S.W.2d this hound to have been discussed found therefor will be the reasons good length. one We the rule and one at think any applies equally of the cases it here well as did though question here because the cited. This not a thirteenth the function did exercise juror; upon weighed passed lie evidence and issues and decided whether or not verdict of supported by was evidence, and he concluded supported by that the verdict was the evidence. We read this record and concluded too that this verdict offsetting damages of incidental the incidental benefits supported by was certain statements of witnesses record. wereWe satisfied with the fact. not and We did obligation, not our columns of two set down figures and add or subtract one whether or see not offset the other. This not our function and neither jury’s judge’s was it the if function or the trial function he concluded that statements or evidence of certain opinions merely (after in their the fact that duly being damages qualified) that the incidental offset the incidental benefits, then this was sufficient.
aIn condemnation case amount be allowed or fixed for incidental or benefits and the amount to be actual allowed value of peculiarly province taken is within the of jury, wholly and unless same be so shown to be unfair unreasonable, Court will not interfere jury. with the verdict We read evidence if we are satisfied that the verdict has not been influ by passion prejudice enced or some other motive on part which caused its ren verdict to all was, dered as which is out of we will not line, then *12 disturb the The trial verdict. heard evidence saw these witnesses and and exercised his duties and prerogatives after the verdict been had rendered on passing on motion for new He trial. committed no evi error The therein. record does contain substantial support this dence conclusion. to any weight given testimony to
The be of expressed opinions one of the witnesses who would depend, intelligence, experience of course, candor, knowledge part The values the witness. and on the usually opinions of will values established be property witnesses who are familiar with the value of express opinions experience and who from their as property the actual whether value of taken and as to damaged or not other is or benefited. Merely says damaged one it is so because witness many dollars, thousand or and dollars hundreds helped says, helped “Well, another witness them. It right, great helped it? sir, them Yes did that’s deal, say trying to them.” In other we are is words what jury may accept judgment of a witness who says figures judgment is not voluble and take his well one these about does offset other. Then under up evaluate these circumstances is say As witnesses and arrive at their conclusion. to who upon competent express opinion value is land the incidental benefits largely question
is within discretion court. credibility these various questions
challenged in that one witness asked certain says thing says one and another witness another. jury is the final Under such circumstances arbiter of challenge given the effect of whether that shall dis eliminating testimony. crediting the his All witness especially more of this in cases kind makes, of this *13 24 largely opinion evidence, the the evidence
where past made this Court has that statements pronounced jury than given verdict more to be effect said: "We ever. have heretofore kept rule well established must “Another jury all has heard mind, is, seen and that that hearing seeing sides and witnesses for both and after plaintiff against determined these issues them has credibility error. Their been determined.” has thus Batey State, v. 191 Tenn. 235 S.W.2d 592, 597, 591, 593, and
‘‘ testify heard the saw observed their demeanor on the witness stand, and question credibility by of their was settled the verdict jury.” of the Robertson State, v. 189 44, Tenn. 42, S.W.2d
“This question is no more credibility than a of the by witnesses and is foreclosed the verdict.” Turner State, v. 188 Tenn. 312, 318, 219 S.W.2d 191. is true quoted
It these statements above were made in criminal cases but it seems if apply those rules in crim- they inal cases apply equally should in a civil case stronger only reasons. Here we property rights have involved while in the criminal liberty cases the life and the citizen was involved. originally right we we were
For these reasons feel that wherein the there evidence in this record and that they did, find incidental could, these offset benefits were deny petition expressed must we herein reasons *14 rehear.