Ross v. Commissioners of the Palisades Interstate Park

| N.J. | Jun 6, 1917

The opinion of the court was delivered bjr

Black, J.

This case is an appeal from the verdict of a jury rendered in a condemnation proceeding, tried at the Bergen Circuit. The verdict of the jury was eight thousand ($8,000) dollars. The award of the commissioners was six thousand six hundred ($6,600) dollars. The amount of land sought to be taken was three and six (3.6) tenths of an acre.

The land under condemnation is situate in the extreme northerly part of the borough of Fort Lee, Bergen county, and lies between a line drawn parallel with the Hudson river one hundred and fifty (150) feet west of the high-water line of the Hudson river and the steep cliffs of the Palisades. The tract extends about nine hundred and eighty (980) feet along this line, while the distance from the line to the cliffs is one hundred and seventy (170) feet at the northerly end and one hundred and fifty-five (155) feet at the southerly end. Access to the land on the west is shut off by the steep cliffs. The surface of the land is a steep slope from the base of the cliffs to the easterly' boundary. The land is bounded on the east by other lands of the appellants, which extend easterly one hundred and fifty (150) feet to the high-water line of the Hudson river and from there to the exterior line for solid filling.

• The land in question, and the remainder of the same tract, is wild, unoccupied land, the upland being covered with small trees, underbrush and stones, the whole tract being under-laid with slate and sandstone, and at the westerly end, at an elevation of one hundred and twenty-three (133) feet, with trap rock. There is no communication with the land by railroad, trolley or wagon road; none of the land under the Palisades, north of the tract, has ever been used for industrial purposes, and the nearest land under industrial development is. two and'six (3.6) tenths miles southerly in the adjoining borough of Edgewater.

The grounds of appeal are thirty-eight in number. They are argued, however, under eight (8) heads, in the appellants’ brief. They all challenge the rulings of the trial court and allege trial errors as grounds for a reversal of the judgment. The principal ones, however, relate to the court’s exclusion of the opinion of appellants’ experts as to the value of the land taken. The witnesses offered by the appellants for this purpose were Mr. Frederick Dunham, a civil engineer; Mr. Floyd S. Corbin, a real estate broker of water front and dock properties in the harbor of New York; Mr. John H. Elirehardt, a consulting engineer; Mr. Edlow W. Harrison, a distinguished civil and consulting engineer. Mr. Harrison has had long and varied experience in valuing railroad lands in New Jersey for taxation, since 1884, particularly as to the value of the railroad terminal lands in Hudson county. He has been called as an expert on many features of the litigation involving the taxation of railroad property since the passage of the Railroad Tax act of 1884. Mr. Joseph E. Snell is a civil engineer of Newark. Mr. P. Sanford Ross, the appellant and owner of the property under condemnation, is an engineer and contractor. Mr. Dim ham testified that: he had no familiarity with sales of property under the Palisades, in the vicinity of the Ross property; that lie had made no effort to keep in touch with sales of land under the Palisades, in the borough of Fort Lee. Mr. Corbin had no familiarity with the sale of any water front property, in the borough of Fort Lee, or with the sale of any property anywhere, which had the same physical characteristics and the same lack of any means of communication, as the property under condemnation, or the tract of land of which it formed a part. Mr. Mhrehardt had not bought or sold property in Bergen county; he had no knowledge of any sale of any land lying along the Hudson river anywhere in Bergen county. Mr. Harrison testified that the nearest property to the Ross tract, of which he liad any knowledge, was the Koch property, which was located one mile south of the Ross property, his familiarity with this property being acquired by appraising it; he had no familiarity with values of land in the borough of Fort Lee, except this one appraisal of the Koch property; he know of no sales of any property similar or like the Ross property; furthermore, the record does not show any question overruled by the trial court, put to him, as to the value, but it does show that the trial judge said he would sustain the objection. Mr. Snell testified that he had never purchased or sold any land in the vicinity of the tract under condemnation; that he had no familiarity with the sale price of any land in that vicinity. Mr. Boss testified that he had no knowledge of sales oE water front property- under the Palisades north of the land under condemnation; that he had made no effort to learn the sale prices of such property; he had no knowledge of either values or purchase prices of any property in the borough of Port Lee, except the piece under condemnation and the tract of which it was a part, which he purchased in 1882.

The primary’ question in this case for solution, then, is whether, under our cases, it was error to reject the opinion of these witnesses, on the value of the land under condemnation. Who is an expert under our decisions must be left very much to the discretion of the trial judge; his decision is- conclusive, unless clearly shown to be erroneous in the matter of law. Manda v. Delaware, Lackawanna and Western Railroad Co., 89 N. J. L. 327; New Jersey Zinc Co. v. Lehigh Zinc Co., 59 Id. 189; Elvins v. Delaware, &c., Tel. Co., 63 Id. 243; State v. Arthur, 70 Id. 425.

Our Court of Errors and Appeals, speaking on this precise point, said: “Evidently, in the view of these authorities, the most material circumstance forming this qualification of expert witnesses as to land values consists of the fact, either that they have themselves made sales or purchases of other similar lands in the neighborhood of the land in question within recent periods, or that they have knowledge of such sales by others. How recent the occurrence of such sales, in point of time, and how near in location, and how neariy •similar in comparison must, of course, vary with the circumstances of each case, and it is therefore impossible to define a general rule applicable to all cases.” Brown v. New Jersey Short Line Railroad Co., 76 N. J. L. 795, 797.

So, the court, in speaking of a former owner of land for six or seven years, said: “Hence/ to say nothing of personal capacity or of study or practice, there was shown on his part no opportunity to- observe, and no actual observation, in the locality of the land which fitted him to speak of its value. The witness had no special knowledge of values, which, being imparted to the jurors, could aid them -in the discharge of their duty.” Walsh v. Board of Education of Newark, 73 N. J. L. 643, 647. The witness must have some special knowledge of the subject about which he is called upon to express an opinion. Crosby v. City of East Orange, 84 Id. 708, 710; Elvins v. Delaware, &c., Tel. Co., supra.

A witness to be an expert must have more than a general knowledge of the subject under investigation. Authorities from other jurisdictions applying a different rule are not binding on this court. II is sufficient to say, in the language of Mr. -Justice Dixon, that if in other states, a more liberal rule is applied respecting the opinion of witnesses as to the value of real estate ; “the worthlessness of such testimony is hardly a stronger reason for its rejection than the practically limitless amount of it that might be produced.” Laing v. United New Jersey Railroad, &c., Co., 54 N. J. L. 576, 578.

In our reports the rule has been applied in the following illustrative instances to the opinion of witnesses on the valuation and damage to land. A witness has qualified as an expert, who lias a knowledge of sales of lots and portions of lands similar to and in the immediate neighborhood of the condemned land; the land so sold was within a radius of two miles from the land in question, and within a period of three years from the date of the giving of the testimony. Brown v. New Jersey Short Line Railroad Co., supra.

A fanner is not an expert, as to the damage done to a farm by the building of a railroad, other than for farming purposes. Pennsylvania Railroad Co. v. Root, 53 N. J. L. 253. heal estate agents residing six miles distant from the property, who had nothing to do with property in the vicinity or anywhere near it, are not experts on the question of rents. Haulenbeck v. Cronkright, 23 N. J. Eq. 407; affirmed, 25 Id. 513.

Ordinary real estate agent is not an expert as to the value of the private title in a strip of land lying on a public highway, separated by the street from private property, nor as to damages done to the owner of the abutting property, by appropriating that strip to railroad purposes. Laing v. United New Jersey Railroad, &c., Co., 54 N. J. L. 576. heal estate agent is not an expert to give his opinion on difference bctween value of the property either to rent or sell estimated with the railroad in the street and the value without the railroad. Thompson v. Pennsylvania Railroad Co., 51 Id. 42. Not simply because witness resided on the property or because the witness owned and resided upon adjoining property. Riley v. Camden, &c., Railway Co., 70 Id. 289. A real estate agent is not an expert as to the amount of depreciation caused by the existence of a sanitary sewer running through the premises. Morrell v. Preiskel, 74 Atl. Rep. 994. Nor is a real estate agent an expert, who is familiar with prices of property in the neighborhood,' as to the value of land after the construction of a tunnel with its present value. Pennsylvania, New Jersey and New York Railroad Co. v. Schwarz, 75 N. J. L. 801.

The fact that a real estate agent on one occasion ivas able to lease a farm having a water-supply, in preference to one which had not, affords no basis for an opinion concerning the difference in rental value between the two. Crosby v. City of East Orange, 84 N. J. L. 708.

Knowledge, of real estate values in the locality does not qualify witness to testify to the diminution in value of property, by reason of the destruction of 'shade trees standing in the highway in front of it. Burrough v. New Jersey Gas Co., 88 N. J. L. 643. Or such knowledge in a township. Van Ness v. New York, &c., Tel. Co., 78 Id. 511. Valuation of adjoining railroad terminals is a basis of qualification of members of board of assessors making the valuation. Long Dock Co. v. State Board of Assessors, 89 Id. 108. An experienced real estate man of large experience is not an expert on the question as to the fair value of the connection and use of a sewer condemned. Park Land Corporation v. Mayor, &c., of Baltimore, 98 Atl. Rep. 157. A witness with some knowledge of real estafe is not an expert on the value of shade trees. Elvins v. Delaware, &c., Tel. Co., 63 N. J. L. 243.

From the rule thus stated, and its application made by our courts, it was not error for the trial court to exclude the opinion of these witnesses, on the value of the land under condemnation. . •

Nor was it error to admit the opinion of the witness Williaui O. Allison. He liad bought and sold property in the borough of Fort Lee of the same peculiar quality; he qualified, as an expert, under the cases above cited (Brown v. New Jersey Short Line Railroad Co., supra); nor was it error to exclude evidence as to the value of the stone in place, under the case of Manda v. Delaware, &c., Railroad Co., supra. The stone in place is a part of the land; it cannot be valued separately and apart from the land, to what extent, if any, the value of the land is enhanced by the stone may be shown. The value of the land, as stone land suitable for quarrying is a proper subject of consideration, both by the witnesses and the jury in fixing the amount of just compensation to be awarded, but not the value of the stone separately and apart from the land. The value of the land is not measured by such facts. The stone is a component part of the land. Reading, &c., Railroad Co. v. Balthaser, 119 Pa. St. 472, 482; 126 Id. 1, 10; Norfolk, &c., Railway Co. v. Davis, 58 W. Va. 620, 626; St. Louis, &c., Railway Co. v. Cartan Real Estate Co., 204 Mo. 565, 575; Gardner v. Inhabitants of Brookline, 127 Mass. 358; Tri-State Tel, &c., Co. v. Cosgriff, 19 N. D. 771; 26 L. R. A. (N. S.) 1171; 10 R. C. L. 129, § 112; Lew. Em. Dom. (3d ed.)} §§ 724, 725; 15 Cyc. 758. These cases cited as supporting a different principle are not in point: Dewey v. Great Lakes Coal Co., 236 Pa. St. 498, 500; Cole v. Ellwood Power Co., 216 Id. 283, 290; Seattle, &c., Railroad Co. v. Roeder, 30 Wash. 244.

Nor was it error to admit the testimony of Frank Clark, whether the stone in question would make concrete. So, it was not error to admit in evidence the prices paid by the condemning party for similar lands in the vicinity. Curley v. Mayor, &c., Jersey City, 83 N. J. L. 760; Hadley v. Freeholders of Passaic, 73 Id. 197. So, it was not error to exclude the purchase price of.the Carpenter tract; it was not substantially similar land or of the same peculiar quality. The purchase price included the quarry, machinery and goodwill of a quarry plant in operation. Manda v. Delaware, &c., Railroad Co., supra; Brown v. New Jersey Short Line Railroad Co., 76 N. J. L. 795; Manda v. City of East Orange, 82 Id. 686. Nor was' it error to admit the opinion of Dr. Henry B. Hummel, state geologist of New Jersey, with regard to the danger of 'stones falling from the cliffs along the Palisades,' at the Eoss property. Nor was'it error, on cross-examination, 'to permit the witness Charles W. Stanisfoith to testify as to' the specifications of the dock department of New York City;' it was admissible to test his knowledge of the various specifications which he said he had prepared. Nor was it error to exclude Joseph E. Snell from answering the question: “In your opinion does the taking of the three and six-tenths acres from Mr. Boss’ property injure the remaining?” when the witness was permitted to answer the following question: “Does the taking of the three and six-tenths acres render this property less available for commercial purposes ?” ' Under the third ground' of appeal, to the witness Frederick Dunham, this question was asked: “Do you know whether the railroad has been laid out further up the river ?” This was overruled on the ground that the best evidence as to whether a railroad had been laid out would be the papers, if any, in the secretary of state’s office. This was not error, but under this head, counsel for the appellants argued at some length that the trial court excluded relevant evidence tending, to show the adaptability of the land for commercial purposes; it is sufficient to say, in answer to this, that the record, so far as we have been able to find, does not in fact show any such evidence excluded by the trial court. Nor do we find any error in the charge of the court to which .error is assigned. This ' is contained in the thirty-first to' the thirty-eighth grounds of appeal. The precise'point of alleged error in the ehargé of the trial court is not made clear, and it hardly needs any extended discussion. The charge is in conformity to the cases in our reports, on the points excepted' to. Packard v. Bergen Neck Railway Co., 54 N. J. L. 553; Manda v. City of Orange, 82 Id. 686; Manda v. Delaware, &c., Railroad Co., supra.

The charge of the court that the jury were obliged to value the land in the condition in which it was on the 12th day of January, 1914, ’which was the date of the filing of the petition and order thereon, fixing the time and place for commencing idle condemnation proceedings, was correct, as required by statute. Pamph. L. 1900, p. 81, § 6; 2 Comp. Stat., p. 2184, § 6; Manda v. Delaware, &c., Railroad Co., supra.

Finding no error in the record, the judgment of the Bergen Comity Circuit Court is affirmed, with costs.