Summary
sustaining verdict where after-taking value found by the jury was below the range established by the testimony of the appraisal experts
Summary of this case from Geise v. Am. Transmission Co.Opinion
August 31, 1964 —
September 29, 1964.
APPEAL from an order of the circuit court for Outagamie county: ANDREW W. PARNELL, Circuit Judge. Reversed.
For the appellants there was a brief and oral argument by John E. Esler of Kaukauna.
For the respondent the cause was argued by A. J. Feifarek, assistant attorney general, with whom on the brief were George Thompson, attorney general, and A. W. Ponath, corporation counsel of Outagamie county.
The order appealed from set aside a jury verdict in favor of plaintiffs and awarded a new trial to the defendant on the issue of damages, or in lieu thereof gave plaintiffs the option to take judgment in a reduced amount.
Plaintiffs are the owners of a farm in Outagamie county, about four acres of which lie within the corporate limits of the city of Kaukauna. The remaining portions of the farm lie north of the city. On December 21, 1960, the state highway commission took 25.5 acres from plaintiffs for the purpose of constructing U.S. Highway 41, a no-access highway, and a diamond interchange between Highway 41 and State Trunk Highway 55. The land taken from plaintiffs consisted of a strip of land running east and west through plaintiffs' farm.
Prior to the taking, plaintiffs' farm consisted of approximately 350 acres, divided into two portions. The "main farm" consisted of 275 acres abutting for a distance of about 1.3 miles the westerly side of State Trunk Highway 55 which runs generally in the north-south direction. The "small farm" lay along the east side of State Trunk Highway 55 for a somewhat shorter distance. After the taking plaintiffs were left with four separate parcels containing a total of approximately 325 acres and completely surrounding the interchange of Highway 41 and Highway 55. Approximately 60 acres formed the northeast quadrant of the interchange; 200 acres the northwest quadrant; four acres the southeast quadrant; and 60 acres the southwest quadrant. A cattle underpass was provided between the northwest and southwest quadrants under Highway 41. However, no provision was made for moving machinery between the quadrants except by way of Highway 55. Plaintiff John Hurkman testified that machinery could not be moved in this way because of the danger involved, and the prohibition against moving machinery with lugs on the wheels. The main-farm buildings, including the barn, machine shed, silos, and utility shed are located on the southwest quadrant.
Plaintiffs' case consisted of the testimony of plaintiff John Hurkman and three expert witnesses, George Simon, Herman Jennerjohn, and Lothar Kemp. Mr. Hurkman testified to a value before taking of $245,000 and a value after taking of $105,000. He indicated that the basis of his testimony was the damages plaintiffs would sustain by reason of being required to build new farm buildings in order to efficiently operate the farm. On cross-examination he indicated, however, that he arrived at his figures on the basis of other sales in the vicinity. No attempt was made to identify those sales. A motion to strike his testimony was denied.
Mr. Simon testified to a value before taking of $243,000 and to a value after taking of $113,000. He thought that there was a considerable amount of platting value in the farm before the new highway went through. After the highway went through he set a value of $52,000 on the northwest quadrant, including $25,000 for road frontage and $27,000 for the remaining land, strictly as farmland, on the basis of 180 acres at $150 per acre; $40,000 for the value of the southwest quadrant, $1,000 for the southeast quadrant, and $20,000 for the northeast quadrant; he felt that damages to the land for change of grade and cost of fencing would be about $4,000. On cross-examination he indicated that there was still value for platting purposes in some quadrants.
Mr. Jennerjohn testified to a before-taking value of $210,000 and a value after taking of $120,000. He testified on cross-examination that his appraisal was not based on comparable sales because in his opinion there were no comparable sales.
Mr. Kemp testified to a value before taking of $245,000 and a value after taking of $107,350. He testified that the highest and best use of the Hurkman farm was agricultural and possible future platting and annexation to the city of Kaukauna.
The state's expert witnesses on value were Mr. Carlton Wieckert and Mr. Willis W. Capps. Mr. Wieckert testified to the value before taking of $125,000 and the same value after taking. Mr. Capps thought the value before taking was $126,000 and the value after taking was $154,000. Both witnesses based their opinions on the commercial potential of the land surrounding the interchange of Highways 41 and 55.
Mr. Wieckert thought that the highest and best use of the Hurkman farm was commercial development along the interchange and residential possibilities along the roadways. He testified that two corners of the interchange were what he called "turn corners," — in great demand for filling-station locations. Possibilities on the other corners were motels, nightclubs, transportation companies, or construction contractors. As to the before taking value he testified as to several sales that he considered more or less comparable. (This case, Hietpas v. State, post, p. 650, 130 N.W.2d 248, and another case which is not being appealed were consolidated for trial. Although Mr. Wieckert indicated at first that the sales he considered were comparable only to land involved in the Hietpas Case, he testified on cross-examination that with minor adjustments the sales were comparable to the Hurkman property as well.)
The comparable sales involved property located within an area of about three miles of the Hurkman farm; they were farmlands of the same basic type and some had a platting potential; the size of the parcels ranged from 17 acres to 75.9 acres; some parcels had farm buildings and others did not; the sales covered a period from 1956 to 1960 and were not forced sales; and sales prices varied from $5,950 to $36,000.
Both Mr. Wieckert and Mr. Capps testified that they were unable to separate the anticipated special benefits from the bedrock value of the remaining land in their after-taking valuations. These benefits were, of course, the increased value by reason of change in highest and best use to commercial and industrial use along the corners of the interchange. In substance, both witnesses testified that they were unable to arrive at a value after taking if those uses were not the highest and best uses.
On rebuttal plaintiffs in the consolidated cases produced Mr. Joseph H. Doerfler, a professional real-estate appraiser. He testified that there were a great number of interchanges between Oshkosh and Kaukauna on new Highway 41. He further testified that the value of each of these interchanges was lessened as the number increased, because of the balancing of the forces of supply and demand for filling station and restaurant corners. He indicated that, while he had not made an appraisal of the lands in question, it was his opinion that the value of any special benefits to the real estate involved in the other cases consolidated with this one was minimal and highly speculative. He did not testify specifically regarding the value of special benefits to the Hurkman property, although he indicated that there was an interchange approximately a mile and a half from the Hurkman property.
The case was submitted to the jury on a special verdict inquiring as to values immediately before and after the taking. The jury found the value of the Hurkman real estate before taking to be $135,000 and the value after taking to be $85,500. After verdict plaintiffs moved to change the jury's verdict to an after-taking value of $50,000 for the reason that it was obvious that the jury found the value of the land solely as farmland and it was undisputed that the farming operation could not be continued or, in the alternative, that the court change the answer in the special verdict regarding the value before taking from $135,000 to $235,000, and for judgment on the verdict as amended. Defendant moved to change the answer regarding the value after taking from $85,500 to $107,350 for the reason that that amount was the smallest value after taking testified to by any expert witness or, in the alternative, for a new trial.
The trial court granted defendant's motion for a new trial for the reason that the jury's after-taking value of $85,500 was unwarranted because it was below the lowest appraisal of the property, which was the $105,000 value testified to by plaintiff John Hurkman. In lieu of a new trial the court granted plaintiffs the option to take judgment for $30,000, the difference between the before-taking value of $135,000 found by the jury and the after-taking value of $105,000 placed on the property by Mr. Hurkman. Plaintiffs appeal from the order.
Is there credible evidence to sustain the verdict?
The plaintiffs contend the evidence of comparable sales, offered by the defendant through its experts, will sustain the jury's after-taking value.
The defendant's position is that evidence of comparable sales was not offered either to support the appraisals of its experts or as direct evidence of value but for the limited purpose of adding weight to the experts' opinion.
While some jurisdictions receive evidence of comparable sales for the limited purposes of qualification of the expert witness and giving weight to his opinion, the majority, including Wisconsin, admit them for the additional purpose of being independent evidence of the value of the land in question.
5 Nichols, Eminent Domain (3d ed.), pp. 408-410, sec. 21.1, and pp. 417-436, sec. 21.3 [1]; Bear v. Kenosha County (1963), 22 Wis.2d 92, 100, 125 N.W.2d 375; Smuda v. Milwaukee County (1958), 3 Wis.2d 473, 477, 89 N.W.2d 186; Blick v. Ozaukee County (1923), 180 Wis. 45, 46, 192 N.W. 380.
In this instance the defendant offered the evidence of comparable sales without qualification as to its purpose after the competency of the expert witnesses had been established. The evidence was received by the court without limitation over the objection of the plaintiffs.
As part of the instructions to the jury the trial judge included the instruction on comparable sales which appears in Wis J I — Civil, Part II, 8120:
"There has been received into evidence testimony as to other sales as an aid to the jury, if such it be, in determining the fair market value of the property under consideration.
"In determining the weight and effect that is to be given to such other sales, you will consider all of the elements of similarity in situation and time and also all the elements of dissimilarity and determine how far such sales go to establish what was the fair market value of the property in question on the date of taking. However, before such evidence on comparable sales may be considered by you, you must be satisfied that such sales, themselves, meet the test of fair market value, as that term has, heretofore, been defined for you.
"Similarity, as used in this instruction, does not mean identical. No two parcels of land are exactly the same. A parcel of land is said to be comparable to another when there is a fair resemblance between them with respect to size, actual or potential use, location, improvements, and general features and characteristics."
The Comment to this instruction provides:
"If evidence of comparable sales has been introduced for the purpose of qualifying an expert witness, this instruction should not be used. If such evidence is introduced as substantive evidence to establish value, then this instruction may be given.
"Smuda v. Milwaukee County, 3 Wis.2d 473, 477, 89 N.W.2d 186 (1958); American States S Co v Milwaukee N R Co, 139 Wis. 199, 120 N.W. 844 (1909); 5 Nicholson [sic] Eminent Domain 3d § 21.3 (1952) (supp 1962); 1 Orgel on Valuation Under Eminent Domain 2d § 138 (1953).
"As to similarity, see Stolze and wife v The Manitowoc Terminal Co, 100 Wis. 208, 214, 75 N.W. 987 (1898); Washburn v. Milwaukee Lake Winnebago RR Co., 59 Wis. 364, 377, 18 N.W. 328 (1884)."
It is clear that the trial court received the evidence of comparable sales as substantive evidence to establish the value of the land.
We take notice from the records of innumerable land-condemnation cases that opinions of ostensibly equally qualified experts as to values often vary to a substantial and irreconcilable degree. Considering the opinions of the experts alone, in these cases, can leave the jury with little rational basis for its ultimate findings. In these instances proper evidence of comparable sales can be of substantial aid to the jury in the performance of its obligation to find the true value.
The problem is illustrated by the evidence in this case. One of the plaintiffs and their three experts testified to before-taking values of $245,000, $243,000, $210,000, and $245,000, respectively, as contrasted to the opinions of defendant's experts of $125,000 and $126,000.
The defendant offered in evidence these sales for the obvious purpose of establishing a lower before-taking value. The jury did find the before-taking value to be $135,000. If the jury considered the evidence of comparable sales in fixing upon a before-taking value, it probably considered the same evidence in determining the after-taking value. Under the evidence and instructions it had a right to do so.
The experts for the state were of the opinion that the after-taking value was equal to or exceeded the before-taking value because of the special benefits afforded to the land by reason of the improvement. Neither of these witnesses could give an after-taking value exclusive of special benefits.
The jury could, by reason of the testimony of Mr. Doerfler, infer that there were no special benefits or that they were minimal. If it did so and gave weight to the comparable sales its finding of an after-taking value was $85,500 is within the credible evidence of the case.
We, therefore, conclude that there was sufficient credible evidence in the record to sustain the finding of the jury. The answer of the jury in the verdict should be reinstated, order granting a new trial reversed, and judgment rendered for the plaintiffs upon the verdict.
This opinion should not be construed as restating or otherwise affecting the rules regarding admission of sales of other land as independent evidence of the value of the land in question. We express no opinion as to whether the sales offered in this case meet those tests. The defendant, who successfully offered these sales without limitation, cannot now be heard to claim that they were not in fact comparable sales or that they were to be used for a limited purpose.
By the Court. — Order reversed, and cause remanded with directions to reinstate the jury verdict and render judgment thereon for plaintiffs.