*1 A. No. 19452. [L. Bank. Oct. 1947.] LONG BEACH CITY HIGH SCHOOL DISTRICT OF
LOS ANGELES COUNTY, Respondent, v. IRWIN STEWART al., Appellants. et *2 Walsh, Houser and J. & Houser &
Dechter, Hoyt, Pines Appellants. Houser for Everett County Counsel, Purdum Kennedy, Ernest R W. Harold Deputy County for Re- Frampton, Counsels and Jesse J. spondent. proceeding land for a
SPENCE, J. this to condemn In Stewart, Irwin William junior high school, defendants new Coyle appealed. have After Henry and M. Pearl Stewart have concluded that the entire record we careful review of error, and that no reversible the trial court committed is the affirmed. Irwin therefore be Stewart judgment should points presented have been whose behalf defendant on Therefore, argument. on oral appellants’ brief and appellant. referred will hereinafter be convenience, he totaling parcels, consists of five condemned city Appel- Long Beach. the outskirts of the acres, 18.60 lant, at the time proceedings instituted, were owned Parcel 1, consisting No. of 15.28 judgment acres. The appealed from $20,000 him awards property. for his The entire acquired by him in 1905 per acre, for the sum of $150 and he has resided on Parcel No. used parcel has farming operations continuously since time. dwelling he built thereon a house, barn, frame store- room, and garage shed. Later a was added re- and a small pair shop, operated by appellant’s son, was housed behind the dwelling house in a measuring structure 28 feet 32 feet. improvements These comparatively value, are of small highest by any estimate made being $2,500, witness and that by appellant’s expert. own Parcels 3 and 4 Nos. are of lot size. improved Parcel No. dwelling with a stucco owned defendants Luman Rose, P. Rose and Isabell M. husband and wife. Parcels Nos. 3 and 4 lots, are vacant approximately 75 feet 155 feet, which appellant had con- veyed son, to his Henry defendant William Stewart, and to daughter, Coyle. defendant M. Pearl Parcel 5No. is a six-foot strip of land. appellant’s acquisition
Since *3 surrounding tracts on three rectangular sides of the entire strip, including long the north sides, and south have been developed as residential subdivisions. On the fourth or west side is located the right Union Pacific way. Railroad of There has been no development industrial vicinity and the development, consisting business of stores and a beer parlor, is distant 800 feet to one-half mile appellant’s from parcel. In property, together this with surrounding the area, was single family zoned into a residence district. shop Thereafter the appellant’s operated was son under a “non-conforming permit.” use public necessity suitability issues as to of the junior high for the were determined in school re-
spondent’s by sitting jury. favor the court without a There- jury after appellant $20,000 compensation awarded as taking property, portion of his and it is this latter judgment present appeal. that he attacks
Appellant erroneously (1) jury contends: in- was structed limit to their consideration of value to the use to might existing zoning put be under ordi- ; (2) testimony nances witness appellant’s was erroneously limited to statements as to value of the land for purposes; (3)
residential the court refusing erred in appellant testify permit to the reasons for his as to value.
Appellant first claims that
there was error in the
given
jury.
says:
instructions
He
“We can state
briefly that the error was in the introduction of the idea of
‘availability’ as a basis for
In
words,
values.”
other
appel
“
fixing the
lant claims that in
land,
adapt
market value of the
ability”
any
use should be
jury,
considered
but
“availability”
obviously
should not.
Such
not the
jury
law, for the
should consider whether the land is or is
particular
not available for
uses under existing zoning ordi
“availability”
nances, as such
does affect market value.
City
Angeles
Hyatt,
Los
H. S. Dist. v.
Cal.App.
221], was an action in
acqui
P.
eminent domain for the
[249
purposes.
for school
Upon appeal,
sition
it was
zoning
insisted that the consideration of
restrictions to which
subject
question
unjust
was “an
handi
appellant
fixing
deny
cap
damages.”
the award of
ing
validity
objection,
page
of the
the court stated on
might
many
272: “There
be
considerations which if re
property,
moved would enhance the value of real
but when
they
they
duty
It
exist
should
observed.
was the
of the
having any bearing upon
to consider all conditions
trial court
valuations.”
Beverly
City
Anger,
Hills v.
2d Upon appeal, the chief attack was public park purposes. zoning the admission in evidence of a ordi- directed toward which restricted use of the lots to construction nance city dwelling that “the houses. It was asserted one-family advantage proceedings in condemnation may not take enacting which is caused valuation of lots decreased contrary, the mar- ordinance, upon the of a basis reasonable on the be estimated ket value should (P. 226.) may. adapted.” To to which the use 227 and 228 that *4 court stated contrary, the pages city adopted a zoning which is ordinance “enacting of a the market actually affect does and which good in faith in evidence competent nevertheless property value of real of condemnation for city subsequent in a suit of behalf use.” public 767 City Beverly principle The same in was enunciated 476], Hills v. Anger, Cal.App. 626 P. where was [294 pages further if is testi- indicated at 629 and there mony prospective with a “plausibility” demonstrates use purposes other than to which the land is re- stricted, jury might if in be it finds instructed that accordance with evidence, defendants’ “in view of the then supposed changes city of conditions, the council in the exer- cise of its might modify, indicated, discretion as ordinance, estimating and that market in value jury might possible change of consider this the ordinance value, possi- the reasonable influence on of such bility.” In Central Pearson, Railroad v. Co. Cal. Pacific gave
this “availability” court consideration the matter of to when it was insisted that the land was en value certain potential hanced reason of privileges. wharf The court “ said page at 262: The value testimony relation to the wharf privileges on river, the shore of the Sacramento where ebbs enhancing tide and flows, given purpose the value of sought some of the land be appropriated, to improperly also received, for the obvious reason that party claiming compensation fran had no wharf chise. The fact mere the party might at some future time obtain from the grant if State of a wharf franchise allowed to remain the land, altogether owner of the too speculative remote and taken into consideration. The question for the Commissioners to ascertain and settle was the present value of condition, in its then what it something would be worth if be annexed more should (Gould it at some future time. v. Hudson Rail The River ” 522.) Company, road N.Y. following appears Supreme from the Washington Court Bay Bellingham B. R. Co. v. & C. Strand, Wash. 311 page : conten “The 146] tion all, is that or nearly all, of the witnesses that testified value taken were allowed court pros to include of said certain their estimate pective rights ordinary high to the lands below the line tide in the Puget waters of That the witnesses were Sound. so allowed is clear from there record, do and we must fore right decide contingent whether or not prospective this proper element de taken into consideration
termining the value of the taken. We think that proceedings was not. At the time these were instituted giving proprietor in there was no law force to the littoral any rights lands, in under the deci whatever said tide regard rights proprie this in to the of littoral sions of court rights lands, had no valuable respondents tors such say entirely legislature to whether therein. It left any recognition pro littoral they or should have as such not circumstances, any which was prietors. value Under these any rights by placed upon property taken, reason by legislation, might might upon bestowed not be proceed value in constitute an element of was too remote to ings kind; of this . . .” City holding by same court found A similar pro- was a Byers, This v. 54 Wash.
Seattle 791]. lay a street, land that between ceeding to condemn for a appellants opinion recites that and a cul-de-sac. The street that, known as ‘Sev- “attempted if the cul-de-sac to show ’ future indefinite time enth Avenue should at some much city, land would become by appellants’ be vacated then, by present of their valuable, they reason more as would included additional now ownership, secure being based speculative, evidence was cul-de-sac. This occurrence, and could a future possibility of the remote estimating value.” properly considered be authorities upon which the underlying principles The Domain, Eminent in Nichols are based are summarized compensation “. . . the follows: edition, second volume the mar- domain is by is taken eminent awarded when land adapted any use to which it ket value of the land emphasis 671; (§220, p. which it is available.” and for use particular a “When however said: added.) It is also law, a there is prohibited or restricted property is will prohibition or restriction that the probability reasonable such future, in the near removed be effect of modified may taken value upon the probability added.) 669; emphasis (§219, p. into consideration.” sense be common appear rules thus enunciated The in cases value fixing market govern in which should rules rule general words, In other zoning involving ordinances. ordinarily determined must present is that “is which the uses for only by consideration to this exception it is available.” for which adapted presently if general rule is that the land is not available particular zoning reason a use of a ordinance or other imposed law, restriction but the evidence tends to show probability” change “in “reasonable the near future” in restriction, ordinance or other then effect of probability upon purchasers generally minds fixing be taken into consideration in present market value. prejudicial findWe no error in the instructions *6 jury they in the instant case as are in substantial accord foregoing jury with the rules. The was instructed on a number in determining occasions that value, might take only existing possible into consideration not uses or wants community of the might reasonably expected such as be in the immediate future. Instruction No. 26 read: “You should compensation estimate the to the owner reference to the property uses for which the suitable, having regard is to the existing business or community, may wants of the be or reasonably expected in the immediate You also future. should give pertinent including consideration to all circumstances surroundings accessibility location and property, railroads, roads and and affecting other factors the use or uses to which it could reasonably put.” be Instruction No. jury informed the as follows: “You are in instructed fixing the market July 21, value on property defendants desired the Long City District, Beach School you should consider all of the uses to which is suitable available, having regard only existing not to the business or wants of the community, may but also those reasonably expected in jury the immediate future.” The in further told Instruction making No. that “in in quiry as purposes suitable, which the you must not be concerned with the fact that the previously has not purposes.” been used for such only The wording found in might the instructions which give appellant any semblance of complaint cause for is the portion last of Instruction No. 21. That instruction “It read: proper is not to take into speculative consideration or con- jectural enterprises uses or profits or the might which reason- ably result therefrom. Such totally matters must be excluded your from considerations. You are not to consider uses which are speculative remote or only in you their nature and should possible not consider future uses under altered circumstances . ” thereof, reading may As seen from a may or not arise which conjectural, speculative, or is addressed instruction “may which or “future uses” uses. The remote with the in context remainder arise,” interpreted when conjectural to mean uses instruction, appear misleading misunderstanding by, or Any speculative nature. way explicit in impossible view of the of, jury seems occasions that consideration on other it was instructed reasonably might expected. given such uses as could be case, pre- present unlike the situation Furthermore, Cal.App. Beverly (supra, case Hills in the first sented tending nothing whatever the record to show 626), there prohibition or restriction probability that any “reasonable in the near future.” Neither removed modified or will be invading the residential de- has been industry nor business ordinance classi- area. velopment in the involved was enacted three as residential fying started, proceedings were the condemnation years before with is in line the natural clearly that the ordinance slightest sugges- Nor is there the in such area. development purpose was enacted the ordinance tion compensation just claims defeating appellant good words utmost faith. that it was not enacted (supra, Cal.App. Beverly Hills case of the second *7 change in assume that a “speculative to 231), would likely to occur.” zoning ordinance is provisions of in that the trial court erred contends Appellant next appellant’s witness. testimony of limiting the ap- real estate broker and expert, a licensed Appellant’s direct examination that opinion on gave as his praiser, 1, including improve- Parcel No. value” of “fair market improvements at $2,500, valued the ments, $17,500. He acre, value per as the approximately $980 leaving $15,000, estimate, “regard had making such he of the land. may existing time or which reason- at the needs of the district future,” and he took into con- immediate ably exist any I which believe would have factors “all sideration subject property.” He later bearing the value highest that and best use direct examination testified on naturally adapted pur- is “industrial the land for which ’’ following proceedings: further record shows poses. The you to, tract have testified involved Taking this same “Q. your in involved this case—what is parcels in this case—these being higher purpose industrial of its family single residential you would for than or than less homes? Considerably higher.
“A. higher?
“Q. How much study given I it sufficient know. haven’t “A. I don’t purposes. confined I for industrial determine its fair value being district, family residential my single use as opinion to its subdivision, on account family residential that use. is restricted to force, is now ordinance which “Q. Yes. say conservative, at double I to be ultra least
“A. would the amount. “ object to attorney] a minute. I [By respondent’s Just any value which to be statement of is assumed standpoint if of an industrial it should be considered from the any statement the exact Certainly site. he cannot make as to purpose given study. value for if has it no he . " “ I objection will : sustain the Court interrogated It being will thus be noted that the witness concerning money value of in terms of the land “for an clearly purpose.” industrial Such evidence was inadmissible. As was said Railroad Heilbron, Sacramento Southern Co. v. page Cal. : seen, therefore, “It 979] that definitively aligned this court its latest has utterances with great majority itself holding courts in that damages must be measured the market value of the land taken, at the time it is test is not the value for a special purpose, but the fair market value of the land view of all purposes naturally to which it is adapted; there fore while evidence that it is ‘valuable’ this or may purpose always another given freely and should be received, money, the value terms of the price, which one or another witness think the would bring for this or specific or the purpose other is not as an admissible determining element in that market value. For such evidence opens wide the door to vagaries unlimited speculations *8 concerning problematical prices might possible which under contingencies paid land, and distracts the mind of jury single question—that from the of market value—the highest sum which worth persons to generally,
772 open market consideration of the land’s
purchasing any proven (See, also, Highway use.” adaptability for Joint Co., Cal.App. 743, 9 Railroad 128 v. Ocean Shore Dist. No. [18 413].) P.2d Domain, Edition, 2, it on Eminent third volume Lewis proper inquiry is, . not what value of “. . is the is said: particular use, for the but what is it worth in the adaptation for that and other uses.” market, in view of ,1233.) p. (§706,
Nevertheless, objection made, appellant’s before was already an industrial expert had testified “its value for least double the amount had was at to which he purpose” value”; “fair this testified as its market previously apparently he the fact that had believed such con despite importance in determining be of so little “fair to sideration “given study value” that he had not sufficient market ’’ purposes. value for industrial That its fair testi determine particular stricken, mony for a was not and its of value use probably jury’s in the record accounts action presence awarding appellant $20,000, $2,500 the sum of which was by appellant’s expert the amount declared to be in excess of Regardless market value.” “fair the existence of prohibiting the use of the land for industrial zoning ordinance successfully predicated no claim error could be purposes, any ruling allegedly excluded evidence of money any particular use. in terms final contention is that the trial erred Appellant’s court appellant give permitting opinion his reasons for his in not Appellant gave opinion value. his that his as to $5,000 per “Now, your acre. His counsel then said: worth this, him want to answer but I want this for Honor, I don’t you upon?” Objection What do base this record. question proper not this was on direct examina- made that objection. During the trial court sustained the tion, and appellant’s guess right. counsel said: “Í discussion, that’s is all.” That
Appellant, ownership virtue of and residence on years, qualified person for a number of as express (Spring Valley as to its value. entitled 528, Drinkhouse, 681]; Cal. P. Works v. Water [28 Richards, Cal. 72 A.L.R. v. LeBrun Appellant contends he was entitled to 336].) “expert that he was an testify to value but witness” within
773
Procedure,
meaning of section 1872 of the Code of Civil
the
which,
provides:
an
witness
since
“Whenever
gives
opinion, may, upon
examination,
he
direct
be asked
opinion,
may
fully
and
to state the reasons
such
he
by opposing
cross-examined thereon
counsel.”
necessary
We do not believe that it is
determine
appellant
technically
“expert
whether
an
witness” within
meaning
the
for in
section,
of said
event we are of the
objection.
opinion
sustaining
trial
in
court erred
the
general
It is
rule that
opinion
an
is worth no more than the
upon
(In
reasons
which it is
Redfield,
based.
re
There question now remains whether error trial court in excluding appellant’s evidence of reasons opinion requires for his a reversal the judgment. This question must light be determined of the entire record. $5,000 per
Appellant acre “was concedes that his estimate quoted by greatly prices other witnesses and excess of . . .” record bears standing itself ridiculous. qualifications witnesses, are Expert out whose this statement. parties. experts by all, produced both These were conceded give were asked to their estimates of “market value” appellant’s “market not a estimate of the appellant’s expert, given by any expert, including value” own per testing acre. In approximately $980 was in excess of cross-examination, opinions witnesses experts of these vicinity. length concerning sales were examined at *10 This both before and evidence covered numerous sales made zoning the that area after enactment 1941 of ordinance the in single family into district. This showed residence evidence prices ranging had from that in area sold at the the any per there was no evidence of sale acre, $600 to and $700 price any general area at a in excess time of land in that $5,000 as per per estimate of acre Appellant’s $700 acre. the land was therefore more than five market value of the given by expert his own and per times the market acre per the was the amount acre which more than seven times any vicinity had ever other land evidence showed that brought. question objection under
When the was sustained proof no consideration, appellant made offer of and there is or in slightest in the record the briefs con- the indication appellant testimony which would cerning the nature the reply question. It given in the can be surmised have upon appellant basing speculation that was his estimate his might that modified at future the some ordinance purposes, permit time the the industrial use of might have and under those circumstances that the greatly indicated, there is increased value. As above suggest any is nothing in the that there reasonable record any probability in near that of such future or modification speculative any has in- possibility of such modification had property. As market value fluence whatever entirely appellant’s was out of har- of market value estimate record, giv- including in mony with all other evidence appellant suggested has not either expert, en as his own any rational for such this court basis trial court in nothing estimate was that such estimate, apparent it seems an owner. guessing part interested wishful more than It appears further trial, the event of another it would be highly probable appellant less, would be awarded rather more, $20,000 than than judgment awarded from appeal which this was circumstances, taken. Under these we cannot reach conclusion that the error of the trial court in excluding question prejudicial evidence or “that complained the error miscarriage of has resulted in a jus (Const., tice.” VI, art. §4½.) judgment is affirmed.
Gibson, J., Edmonds, J., C. Traynor, J., concurred. SCHAUER, I dissent. It to me that defen- J. subjected dant was prejudicial unwarranted and restric- tion in presentation of his evidence and majority that the opinion, affirming judgment, unsound at least two elements:
1. concedes, It must, as it that “the trial court erred in sustaining objection” plaintiff question asking to a defendant, qualified who had witness, to state his for his reasons as to market value. The defen- undoubtedly dant acquainted was better with the sought to be condemned, surrounding and with the property, than other witness. From the record it apparent hope recovery of what he considered the fair value of his property very largely, based if not almost *11 exclusively, upon testimony, his testimony own the he ex- pected and give. was entitled permitted He was to state the being $5,000 value as precluded an acre but from substantiating by his estimate his majority, reasons. The conceding error, the hold it was not prejudicial, be- cause, forsooth, can “It be surmised appellant basing his upon speculation estimate his that the or- might dinance be modified some future time” and “as appellant’s estimate entirely of market value was out har- of mony with all other evidence in the record . . appel- . and as suggested lant has not either in the trial court or in this any court rational estimate, basis for such apparent it seems that such nothing estimate was more than guessing wishful (Italics . . .” added.) quotations the From above appears it now to be the may law of this state that this court base its surmise; decisions furthermore, its own the novel rule is testimony declared and followed that if the of one witness harmony of
is “out with all other evidence record” testimony substantially the of that witness disre- garded (The holding a matter of law. effect of this on section 1844 of the Code of Civil direct Procedure—“The one witness who is entitled to full credit is suf- evidence of proof fact, except perjury ficient for of and treason” surmise.) —appears to further left important majority opinion defect in the 2. The second gives lip in the the fact service to rule lies the “damages must be measured the market value of taken, that the at the time the test is not it is the in special purpose, but fair market value of the land a naturally purposes adapted” which it is of all view added) actually applies but sustain the (italics rule to limiting in of the trial court the test to “the value action fully As special purpose.” hereinafter more a defendant-appellant here was limited his evidence of special purpose land to based on value of estimates single family farming oper- use of residential subdivision or points A above of the facts elucidates ation. statement summarized. which in substan- purchased defendant the tract litigation. subject this At that time entirety
tial is rectangular on south- tract, a unit land located Fe Columbia of Santa Avenue and Street west corner frontage approximately Fe Beach, had on Santa Long westerly 1,800 along some feet Colum- feet and extended conveyed had litigation this defendant Prior to bia. way right strip, 80 feet for a Railroad Pacific Union persons a tract, to other end wide, at the west by 445 feet Colum- on Fe on rectangular plot feet Santa belong- original parcel tract bia; the remainder (Also appeal. on con- this and involved ing to defendant is the appeal, in this involved by plaintiff, demned hereinabove.) parcel Defendant’s rectangular plot described land, 16 acres of approximately comprises now stands as it It has a front- improvements thereon. together certain with 1,275 feet Fe and on Santa approximately feet age dimin- that area wherein but, except Columbia, plot conveyed rectangular above previously ished 1,723 approximately dimensions mentioned, is *12 feet.
Continuously 1905, since defendant has resided on parcel question general and used for livestock and farm- it ing operations. he it eight-room built on frame house, barn, storeroom, garage and a and and shed. Later a shop years prior to, up added. For to the were some and by of, (December, 1944) shop time trial was utilized shop son as repair defendant’s a machine for the oil well equipment machinery. tract and Previous to the entire uses, year had been zoned industrial but in that it was by city Long rezoned Beach as a residential district family continuing dwellings. time At and trial, subdivided, time of it had not no been streets it, had cut into public been it contained no sidewalks or rights way gas and no sewer or water installations except two water wells. The actual industrial use of parcel (the portion of the tract still owned defendant- appellant) operation disclosed record is that of the regular shop. defendant’s son machine “It ais shop machinery heavy machine with all in it kinds work, big things a lathe and press a drill like that.” Immediately litigation west of the is main line a of the Union Pacific Railroad and further are to the west railroad classification yards, freight is shifted back forth; westerly parallel also prop- border erty high power is a transmission line of the Southern Cali- Company. Immediately fornia Edison north of Columbia La Street is the Serena Tract, which was subdivided for resi- dential purposes approximately 1921. Across Santa Fe Avenue, to the property, east of defendant.’s is another resi- subdivision, dential and a third such subdivision bounds the property on the south. Avenue, which, Santa Fe pre- viously mentioned, frontage approxi- has mately feet, largely used as a truck carry- boulevard ing heavy traffic; curbs; it has no paved does have a center roadway 30 feet wide “and 10 feet of shoulders.” Defendant restaurant, testified that a parlor, beer and “several stores” were established at locations distant feet mile to one-half property. from his
Contrary majority opinion, to me that under the shown, circumstances the refusal to allow defen- dant to state his reasons' for the basis value stated consti- prejudicial tutes $80,000; error. Defendant fixed the value at
778 jury
the
him
I
$20,000.
awarded
not
do
think we can
properly
jury
“surmise”
would
have attached no
weight
they
to defendant’s reasons for value which
were
permitted
not
to hear. It was not incumbent
defendant
proof
to
offer
make an
under these
was
He
circumstances.
already qualified
a matter
and as
of law he was
opinion.
weight
entitled to
for
state his reasons
his
The
to
jury,
be accorded
was
those reasons
for
not for us.
prejudice
emphasized
that,
error is
the fact
detail,
witness,
more
as hereinafter
no other
either
appears, making
appraisal,
plaintiff,
for. defendant
or
any
to
industrial
given
to
use value of
have
consideration
any
spe-
its
for
use other than the
property,
or to
value
family
and,
residences”
cific
of “subdivision for
one
farming.
possibly, the still lower use of
forming
present
witnesses,
All
their estimates
given
have
considera
property,
should
highest
use,
every use, including the
and best
tion- to
Napa
adaptable.
(City
v. Navoni
property
which such
566].)
P.2d
Cal.App.2d
San
(1942),
[132
Cal.
Diego
(1888),
v. Neale
Land etc. Co.
[20
Mississippi
this
& Rum
372, 3
court referred to
83],
L.R.A.
(1879),
v.
defendant’s witness than as to the value of property erroneously were restricted to a consideration specific its (for value for a use single subdivision for family residential purposes) give and were not allowed to present effect highest to its e., value its best, poten- and i. tial use, industrial the record following; discloses the real estate broker and appraiser appeared expert who as an witness on behalf of defendant testified that defendant’s property $17,500 was worth residential (in use itself largely potential because property yet was not subdi- vided) permitted by ordinance. pro- The record ceeds : “Q. [By attorney defendant’s to expert witness]
Now, you I ask highest will . . . what is the and best use for which it naturally is adapted? In- [defendant’s A. land] purposes. dustrial
“Q. you What do mean that? A. Manufacturing plant operation any kind industry of an that would adjacent be useful to Long Beach par- Harbor area. That ticular is on one of main vehicular traffic ar- City going teries Long area, Beach Harbor and it very is it accessible and transportation also is near and track- age easily put can be the property, into because abuts the Railway lines, Union Pacific and it adjacent is to yard adjacent classification and industries, to and it has all of industry. the facilities for an There are plenty power plenty and lines for manufacturing plants. water you to, in-
“Q. Taking this have testified same tract parcels involved in this case— volved in this case—these purpose your opinion an industrial what is of its you for residential being higher than or less than would family Considerably higher. . . single homes? A. . I I “Q. higher? know. haven’t How much A. don’t in- study value for given sufficient determine its fair it single I use as purposes. my dustrial confined family district, residential being family residential which is now subdivision, on of the ordinance account force, which to that use. is restricted added.] [Italics say conservative, I ultra
“Q. Yes. A. would to be least double the amount. object I attorney] a minute.
“[By plaintiff’s Just upon prop- any of value which is assumed statement standpoint an from the erty if should be considered Certainly any make statement as he cannot industrial site. given if he purpose has to the exact value for study. no “ Keeping mind this man attorney] [By defendant’s qualified and he said he viewed he as such an conversant with he is say I that he would Long districts, would Beach industrial if it give opinion as to its valuation were qualified to site. placed an industrial on basis of “ (Discussion.) *15 objection.” I will sustain the “The Court: testimony of the (except possibly No evidence other mentioned) to the as value defendant, himself, hereinabove appraisal which included for, upon an or property of the (indus- assertedly “highest and best” of, its consideration in- The thereafter court offered or received. trial) use was any pur- consider for “You must not jury that structed rejected, any that or evidence was any of evidence pose offer matter is to be treated court; such by that out was stricken and, it,” also, refer- known of you had though never possible “you not consider value, should fixing that ence may may which altered circumstances under future uses effectively jury that were thus not arise.” It prof- consider defendant’s they not to were instructed for its property assert- of his as to the value evidence fered last-quoted Furthermore, from the highest use. edly and best they may understood well have jury instruction, be- purposes value residential could not even consider for no yet subdivided, it had property cause the had not been gas making of such streets, installations, sewer or and may improvements circumstances which would be “altered not arise.” expert That produced Plaintiff one witness as to value. at witness, making appraisal, did not consider enterprises or all the value of the for industrial being for is evident from the use for which it was condemned testimony. transcript his own shows: “Q. : I Hoffman, produced plaintiff] the witness [To you this, arriving appraisal will ask at value you given improvements have on and the us that tract highest it, you Parcel did take into consideration I and for which . . ? A. did. best use it was available.
“Q. you Did an industrial site? consider its value as A. I did not.
“Q. You did not? A. No. family
“Q. Why? single resi- A. it is zoned for Because dences.
“Q. you gave thought And it no for other therefore not, use? A. I except did for farm land or subdivision.” reading transcript supports A fair no other con case, clusion than the entire insofar as value is con cerned, plaintiff upon theory tried which in effect was limited use of the for considerations of single family and, possibly, for subdivision for residences farming operations, a still lower use. The defendant’s interrogated length with ref on direct examination specific erence to the value of the use of brief, family subdivision for In their residences. plaintiff’s counsel, summarizing evidence, recognize the ap “Respondent’s [plaintiff’s] fact the statement subject praiser testified that the fair value of the $12,500 purposes subdivision sum (Italics $1,000 buildings. land, for the and . . .” added.) of land determining
The rule is that in the value settled adapted by eminent domain “all which it is taken uses to compensation might put” considered, are to be and advantageous “upon is to awarded the basis of its most having regard existing business use, valuable *16 782
or wants community, reasonably may or such as expected (18 879-880, immediate future.” Am.Jur. 244, and cases cited; Diego there Land § see San etc. Co. v. supra, Neale (1888), 63, 69-71; City Angeles 78 Cal. Los of Hughes (1927), 731, Thus, v. 202 737].) P. Cal. 735 [262 case, last-cited it regard was stated with value of property condemned planted which had been theretofore nursery stock, (page Cal.) 735 202 of “the true basis computing for sought the market value of land to be con demned, in suitability view of the subdi evidence of its vision purposes, when, is its stood on the date law, under the determined, plus its value was to be increased value which had in have . ” suitability city reason of its for subdivision into lots As ob Diego served in Neale, supra, page San Land etc. Co. v. 71 of Cal., specula 78 is not sanctioning “This a remote or tive It merely taking present pros value. is value for pective purposes.”
Insofar as concerns the effect results value which property subject zoning from the fact that ordi is nances, holds, I authority am aware of no which that consid given by eration shall witnesses uses those permitted by which are the ordinances at the date as of which the value of It has is to be determined. (City Beverly Anger (1932), been declared that Hills v. question Cal.App. 867]), P.2d “The as to [15 increasing whether a ordinance the effect of has reducing provisions the value land included within Regardless is one of fact to be established evidence. whether the value of real is increased or diminished zoning ordinance, the ordi application as a result of the of a competent nance is evidence to be considered a suit for located within the district which condemnation determining thereby, purpose the actual affected (Cf. City Beverly Anger market value Hills v. thereof.” Angeles ; P. Los (1930), Cal.App. 626, 629-630 476] [294 City Hyatt (1926), Cal.App. H. Dist. v. S. 221].) city county plain cases, or other
If, condemnation types certain completely consideration of tiff can exclude is otherwise uses, perhaps to which those which it valuable, most and to suited, it is best *17 783 put intended to the property after condemnation, by enact ing, taking advantage or under, a zoning ordinance forbid ding uses, repealed which ordinance can be amended after the is acquired, the constitutional guarantee compensation upon of reasonable taking a public large use be in can a measure pre circumvented. As viously indicated, all which adaptable uses to land is they may, should, and be considered. These include the use (see for which being Mississippi is taken & Rum River Boom v. Patterson (1879), supra, 408; Co. 98 U.S. Diego San Land v. (1888); supra, etc. Co. Neale 78 Cal. 69; etc. R. v. (1909), Sacramento R. Co. Heilbron 156 Cal. City 408, 412 P. v. 979]; (1926), Stockton Vote 76 [104 Cal.App. 609]; City 369, 405-407 P. Stockton v. El [244 lingwood (1929), Cal.App. 708, 96 ; P. Temes [275 228] cal Water v. (1932), Cal.App. Co. Marvin 512, 519 [9 ; Highway 2d Joint Dist. No. 9 v. Ocean Shore Railroad 335] (1933), Cal.App. 743, 749, 413]), Co. P.2d to show the value use to the condemnor but an element affecting the present (see 1029, 160). market value 29 C.J.S. § Obviously, building here the of the land a use school campus single family other than a is residence or farm Equally injustice use. obvious is which, whether the great small, financial perpetrated upon loss be the land by plaintiff allowing through owner an unreal rule or application deny law him conclusively that his presently possesses family value for other than very purposes proceeding residence or farm being acquired another and higher land is use. A further application demonstration of the vice in of such un rule apparent expert conscionable in this case: Plaintiff’s single family appraisal use, his and as based residence making low, pointed a for that use he reason for his valuation dimensions, large its it out subdivided, piece, had not in that was all in one fact been it in truth and that it contained no streets. Yet very its depreciated attributes which value for those resi value for the use for which it appreciated dential use its was condemned. forbidding partic- zoning
While the fact that a ordinance affecting fact ular had been enacted would be material uses generally, district would the value of the zoned many one facts from which par- value being parcel ticular condemned should determined, parcel being that such taken proscribed fact for use highly persuasive would be ordinance ordi- relatively weight nance was entitled to little in fixing the I value. am therefore of the that in presenting view testimony as to value defendant was entitled to have influence on present the witnesses consider the uses, school, including land of industrial and which the particularly adapted character, land was reason of its quantity, dimensions, location, surroundings, its its its public rights way, and relative seclusion from its freedom availability transportation facilities, etc., though even presently proscribed limited *18 a ordinance such uses. of potential consideration industrial or uses
Such a other (as witness does mean that expert perhaps an not sought accomplished here) indepen may, to be witness general opinion his as to the market value dently of uses, testify all of to its property, giving consideration use dif specified one and another and value for it has one (See for a different use. Sacramento etc. R. R. ferent (1909), supra, 410-412; Cal. Joint Co. v. Heilbron (1933), 9 v. Ocean Railroad Highway Dist. No. Shore Co. 743, 754.) adoption Prior in 1937 supra, Cal.App. Procedure, supra, which Code of Civil of section expert gives opinion, witness that “Whenever provides examination, to the rea be asked state upon direct may, he rule .,” was, . as stated opinion . sons for (at page 763), is not No. 9 case “it Highway Dist. Joint money the give to in terms direct examination proper on It any purpose whatever.” for use value in however, 1872 so modifies that section apparent, seems given his expert who has that an witness rule earlier now, direct or upon either a tract value of of market request to state the rea response to a cross-examination, in has con factors he explain the various opinion, for his sons opinion. reaching his sidered here record of the entire upon the exact status Whether, plaintiff’s defendant’s that both the facts (including appraisals of value their avowedly based experts as subdivision specific use upon its they had considered residences; asserted family plain- and, insofar purposes, industrial possible use for its expert concerned, tiff’s denied it had value for such industrial usage; that defendant’s testified that value for than purposes industrial greater would be far single family himself residences; and that defendant stated a value which greater” was “far than that ascribed property by experts the other very for the limited use considered them but which value defendant was not attempt allowed expression substantiate of his rea- sons) defendant’s witness should have been allowed to tes- tify money value of the for an industrial use, need not now be Upon determined. a new trial, all the qualified value could be witnesses instructed in accordance with the views expressed hereinabove as to the elements they properly should consider in appraising mar- ket value of the as of the controlling (July date 21, 1944) and, either direct or cross-examination, each required could be to state his opinion. reasons for his judgment should be reversed and the cause remanded new trial. Shenk, J., J., and Carter, concurred. A. No. 20018.
[L. Bank. Oct. 1947.] EDWARD F. SCHUBERT al., et Appellants, v. LUCILLE al.,
BATES et Respondents.