Opinion
No. 73-294
Decided July 15, 1976. Rehearing denied August 6, 1975.
In eminent domain action, appeal by condemnees presented issue of whether commission was correct in refusing to allow respondent to cross-examine petitioner's expert appraisal witness concerning his prior appraisal of property which he used as a "comparable" in the determination of the value of the subject property.
Reversed
1. EMINENT DOMAIN — Cross-Examination — Condemnor's Expert — Inconsistent Appraisals — Comparable Properties — Relevant. In condemnation action, cross-examination of condemnor's expert witness to show that the expert has made other inconsistent appraisals of the comparable or of similar neighboring land at a time which is not too remote to provide a reasonable comparison is a line of cross-examination which serves, in essence, to elicit additional affirmative evidence of the value of the comparable, and as such it is relevant for purposes of determining the true value of the land used as a comparable.
2. Cross-Examination — Expert — Other Appraisals — Foundation — Conditions Stated. In condemnation action, sufficient foundation for cross-examination of an expert as to appraisals of other property which he has made in the area is laid where it is shown that (1) the appraisal is of a piece of property he has determined to be comparable or involves similar property in the neighborhood of the condemned property, and (2) the appraisal is not too remote in time.
3. Cross-Examination — Expert Witness — Prior Appraisal — Comparable Property — Refusal to Allow — Prejudicial Error. In condemnation action, condemnation commission's refusal to allow respondent to cross-examine the condemning authority's expert appraisal witness concerning his prior appraisal of property which he used as a "comparable" in the determination of the value of the subject property constitutes prejudicial error.
Appeal from the District Court of the County of Eagle, Honorable Charles R. Casey, Judge.
J. D. MacFarlane, Attorney General, Richard W. Phillips, Acting Chief Highway Counsel, Special Assistant Attorney General, Marlin D. Opperman, Special Assistant Attorney General, for petitioner-appellee State Department of Highways, Division of Highways.
Clark, Martin Pringle, Bruce D. Pringle, for respondent-appellant.
This is an eminent domain case. On July 10, 1969, petitioners, the Board of County Commissioners of Eagle County and the Colorado Department of Highways, filed a petition in condemnation to acquire, for highway purposes, 60 acres of unimproved land owned by respondent H. A. Nottingham and Sons, Inc. On March 9, and 10, 1972, a hearing on the issue of valuation was held before a commission of three freeholders. Evidence as to the value of the subject property as of July 25, 1969, was presented by both petitioners and respondent. A certificate of ascertainment and assessment determining value was filed with the court by the commission and a rule and order was thereafter entered based upon the certificate. For reasons not pertinent here, a transcript of the proceedings is not available; however, pursuant to C.A.R. 10(c), the parties have stipulated to sufficient facts concerning the evidence and the testimony presented at the valuation hearing, to permit us to determine the case.
The sole issue on appeal concerns the correctness of the commission's refusal to allow respondent to cross-examine petitioners' expert appraisal witness concerning this prior appraisal of property which he used as a "comparable" in the determination of the value of the subject property.
The pertinent facts are as follows: Both petitioners' and respondent's expert appraisers used the comparable sales or market data approach to value the real estate of respondent. Both used the 1964 sale of the "Grace park" property as a "comparable" in their valuation computations, and both in attempting to arrive at current value of the subject property, based on earlier sales of comparable land, considered other later sales in the area. In this manner, they arrived at an annual percentage increase in the value of the subject property. Respondent's expert had determined a much greater annual percentage increase than had petitioners' expert and respondent sought to inquire further as to the value of the "Grace park" comparable and to impeach the testimony of petitioners' expert. On cross-examination, respondent asked the expert if he had not actually appraised the Grace park property in 1968, four years after its last recorded sale. No mention of this appraisal had been made on direct examination. The appraiser answered in the affirmative and respondent then asked what value the appraiser had placed on the comparable in 1968. Petitioners' objection to that question was sustained.
[1] One of the few means a condemnee has to question the credibility of the condemnor's expert witness, other than by contradictory testimony by other witnesses, is to show that the expert has made other inconsistent appraisals of the comparable or of similar neighboring land at a time which is not too remote to provide a reasonable comparison. State v. Cole Fire Protection District, 92 Idaho 810, 451 P.2d 1011 (and authority cited therein). This line of cross-examination, while ostensibly used for the purpose of testing the witness's credibility, serves, in essence, to elicit additional affirmative evidence of the value of the comparable. As such, it is relevant for purposes of determining the true value of the land used as a comparable. See L. Orgel, Valuation Under Eminent Domain § 145; and see 2 J. Wigmore, Evidence § 463 (3d ed.).
[2] Sufficient foundation for cross-examination of an expert as to appraisals of other property which he has made in the area is laid where it is shown that (1) the appraisal is of a piece of property he has determined to be comparable or involves similar property in the neighborhood of the condemned property, and (2) the appraisal is not too remote in time. See 5 P. Nichols, Eminent Domain § 18.45[2] (rev. 3d ed. J. Sackman).
Here, the stipulated evidence establishes that not only was the property nearby and similar to the subject property, but that it was in fact used by petitioners' appraiser as a "comparable" in his computations of value of the subject property. This appraisal by petitioners' expert of the "Grace park" comparable was also made only one year prior to the date of condemnation of the subject property. Thus, this appraisal, which could have shown that petitioners' expert had misused or improperly adjusted the 1964 transaction of the "comparable," was probative of both the actual value of the comparable and of the credibility of petitioners' expert. Hence, it constituted a proper subject for cross-examination.
Petitioners assert that such an inquiry into the 1968 appraisal would be misleading since the character of the comparable property may well have changed from 1964 to 1968. Indeed, the property may well have changed in those intervening years. However, since petitioners' appraiser brought the subject into question by initially using this property as a "comparable," it should be petitioners' burden to point out any changes in value of the comparable on redirected examination. State v. Cole Fire Protection District, supra.
[3] The limitation on cross-examination imposed by the commission constitutes prejudicial error, State v. Peek, 1 Utah 2d 263, 265 P.2d 630, and thus, the judgment is reversed and the cause remanded for new trial.
JUDGE ENOCH and JUDGE KELLY concur.