Opinion
Page __
__ Cal.App.2d __253 P.2d 709PEOPLEv.LA MACCHIA et al.No. 15080.California Court of Appeals, First District, First DivisionFeb. 16, 1953Rehearing Denied March 18, 1953.
Hearing Granted April 15, 1953.
[253 P.2d 711] Robert E. Reed, Sacramento, Holloway Jones, Jack M. Howard, Roger Anderson and Edward L. Doyle, San Francisco, for appellant.
J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Marvin E. Lewis and Goldstein, Lewis & Barceloux, San Francisco, for respondents.
FRED B. WOOD, Justice.
This is an appeal by the state from that portion of a judgment in eminent domain which awarded compensation to the several owners of five parcels of land abutting highway 101, lying between points situate 1.9 and 3.5 miles, respectively, south of Gilroy.
The proposed taking is for the purpose of converting this section of the highway into a freeway. In each instance a relatively narrow strip is taken. That cuts the remainder of the parcel off from the highway with access only through a limited number of 20-foot openings Thus, Parcel 4 will have one such opening along a frontage of 1580.12 feet; Parcel 6, one opening along a frontage of 857.61 feet; Parcel 7, one opening in 267.48 feet; Parcel 14, one opening in 367.2 feet; and Parcel 19, three openings (and a 'connection' near the southerly end) in 5040 feet.
These are the numbers by which the five parcels were severally identified at the trial.
The damages for the taking and for the severance were separately assessed. The valuation witnesses of the plaintiff and the defendants, respectively, were not far apart on the damages for the taking. Where they differed, markedly, was on severance damages. That stemmed in part at least from the fact that plaintiff's witnesses considered agriculture the highest use whereas defendants' witnesses included commercial uses among those to which the property was adapted.
Plaintiff claims the severance damages were grossly excessive and that this resulted from errors in evidentiary rulings made and instructions given by the trial court. Our examination of the record in the light of the applicable principles of law convinces us that there has been no miscarriage of justice and that the judgment should be affirmed.
(1) Did the trial court erroneously and prejudicially curtail plaintiff's cross-examination of defendants' valuation witnesses?
In support of its contention that 'the court's severe restriction of plaintiff's examination of defendants' witnesses violated the requirement of widest latitude for cross-examination of experts,' plaintiff has cited seven rulings in some 240 pages of the cross-examination of three experts.
Scrutiny of these rulings, each in its own setting, demonstrates that this point [253 P.2d 712] is not well taken. The trial judge allowed plaintiff a wide latitude in the cross-examination of these witnesses and exercised a sound discretion in bringing some lines of inquiry to an end.
In appraising the questioned rulings we must bear in mind that the 'field of inquiry in cross-examination for the purpose of testing the credibility of a witness and the weight of his testimony is so extensive that the trial court must be given a wide discretion in order to keep such examination within reasonable bounds; otherwise the trial of cases would be overlong. When an appellate court is called upon to decide whether such discretion has been abused, the inquiry is whether a sufficiently wide range has been allowed to test such credibility and weight rather than whether some particular question should have been allowed. [Citation.]' East Bay Municipal Utility Dist. v. Kieffer, 99 Cal.App. 240, 261, 278 P. 476, 279 P. 178, 179.
Defendants' witness Hulting testified that these properties were useful for agricultural and commercial purposes, including motels. Plaintiff's counsel asked him if he had occasion to go down to the local chamber of commerce and check up on the present financial condition of motels in the county. In explanation of the question counsel said 'I merely asked him, because he testified here * * * that people, buyers in the market, would buy that with the idea of building a motel. Therefore I asked has he checked? I was going to ask him, 'Upon the basis of investigation what was the financial condition [of motels] in the County?'' Such a question could be justified only as a means of testing the qualifications of the witness and the soundness of his opinion. If allowed, it would almost certainly lead into further inquiries that had no direct bearing upon the major issue, the market value of the property. Its importance as a means of testing the witness Hulting, in view of the very considerable latitude accorded the plaintiff (but one questioned ruling in 90 pages of the cross-examination of this witness), was quite doubtful. That was a question primarily for the determination of the trial court. We find no abuse of discretion in the denial of that inquiry.
Defendants' witness Weiner testified, as to Parcel No. 4, that he valued the land along the highway at $3,000 an acre for commercial uses, but as the frontage was but a portion of the whole tract that figure was reflected in his appraisal of the entire tract at a smaller rate per acre. Asked by plaintiff, if he sold off that frontage, what would be the highest and best use of the remainder, he said that would be getting into speculation; if sold off for a motel, the remainder might be used as agricultural for the time being, with a potential development for further improvement. He was then asked how many acres he would sell off for a motel, which upon objection by defendants was ruled immaterial and speculative. Plaintiff then asked what area lent itself to the development of a motel site and received the answer that it would depend on the particular motel operator, varying from 4 to 20 acres. Plaintiff then asked what size of motel purchasers would construct at this location; disallowed as too speculative. We find no error in those rulings.
Concerning Weiner's opinion that people would not buy such a parcel for a motel site with only 20 feet of access to the highway, plaintiff asked Weiner if he had talked to owners of motels in the vicinity of San Jose and got their opinions as to the type and width of opening they wanted. The witness had not talked to motel owners in the vicinity of San Jose but had talked to them up and down the coast. He was asked if he was familiar with a certain motel on or near First Street, San Jose. He said he had noticed it. Asked if he had talked to Mr. Brown (apparently the owner of the motel), he said 'No.' He was then asked if he knew that Mr. Brown was on the Board of Directors of the National Motel Association. At this point, defendants objected that this would be going into collateral matters and was speculative in nature. In sustaining that objection the trial court acted well within the sound discretion vested in it.
[253 P.2d 713] Defendants' witness Challen testified that the parcels under consideration were useful for gas stations and restaurants. Upon cross-examination plaintiff's counsel asked him a number of questions concerning a gas station that had been operated in the vicinity and then asked 'what happened to it? It went broke, didn't it?' to which defendant objected. Counsel explained that the witness had testified there were possibilities of filling stations and that he was asking the witness 'whether within this freeway project, consisting of seven miles, there are any motels, any filling stations and so forth.' The court ruled 'you can ask him if there are any there now. You haven't asked him that.' Plaintiff's counsel, without further discussion, asked the questions indicated by the court. That was, in effect, a withdrawal of the question whether or not the gas station 'went broke.' The questions asked and answered developed the fact that the service station was not operating at the time of the 'taking' but that the restaurant on the same property was still operating. Upon redirect, the witness testified, without objection, that the service station was not operating because the owner, Mr. Lillard, was injured and not able to operate it, but that the restaurant was still operating because Mrs. Lillard ran the lunch counter and bar. Upon recross, after plaintiff's counsel had asked a number of questions concerning the Lillard restaurant, defendants objected to any line of questions going into specific facts concerning the Lillard property (not one of the parcels involved in this suit), as having no probative value on any of the issues before the court. Plaintiff's counsel then stated that the witness went into the fact that there was a restaurant and filling station and 'I'm going into the fact that the thing did not make any money, as he well knows.' The court asked plaintiff's counsel what he then offered to prove and he replied that prior to the taking of access rights that particular restaurant and filling station was losing money. The objection to the offer of proof was sustained, but plaintiff was allowed to elicit from the witness the fact that at the time of the taking of access rights no gasoline was being sold from that property. Again upon redirect, the witness testified the reason was because of the illness and injury of Mr. Lillard. Again, plaintiff did not object. Its counsel merely commented 'There we go again.' We find no basis for reversal in the denial of plaintiff's offer to prove the Lillard filling station did not make money. We see no analogy between this ruling and the allowance of proof of long non-user and abandonment, as a railway roadbed, of the very property being taken in people v. Ocean Shore Railroad, 32 Cal.2d 406, 426, 196 P.2d 570, 6 A.L.R.2d 1179.
Plaintiff asked defendants' witness Challen a number of questions concerning the various fruits that could be grown here and sold at roadside stands but for the loss of access. Plaintiff then asked him if he felt he could put a fruit stand out in front and put some one to run it or run it himself and have a 'going business.' An objection that this question was speculative was sustained. We deem that a correct ruling. 'The admission of evidence which leads to conjectural speculations is equally harmful, whether on cross-examination or direct.' East Bay Municipal Utility Dist. v. Kieffer, supra, 99 Cal.App. 240, 250, 278 P. 476, 481, 279 P. 178. Moreover, what prejudice could plaintiff suffer from not getting an answer to that question from this witness? It asked defendants' witness Hulting a like question and he said a fruit stand would be a 'profitable business venture.'
Weiner valued at $4,000 per acre the front 4.31 acres of Parcel 6 for commercial uses. Plaintiff asked him if the sale of that front portion as of the date the suit was filed would have depreciated the value of the remainder of Parcel 6. The witness said the answer would be speculative; he knew that if any of the owners made such a sale he would reserve the right of ingress and egress to the remainder, and so there would probably be no depreciation in value of the remainder of the parcel; streets would lead to the rear of that front strip, and the land behind that strip would be available for subdivision. Asked what type of subdivision, the witness said: [253 P.2d 714] Any type; I suggest the very nice G.I. type of homes. Plaintiff then asked: 'How many [homes] could you construct back there?' Defendants objected, as leading into 'all kinds of speculation,' and the trial court properly sustained the objection.
(2) Was evidence of offers to purchase the subject property erroneously admitted to the prejudice of the plaintiff?
Plaintiff asked defendants' valuation expert Challen concerning one of the parcels. Challen gave a valuation of $1750 per acre. Asked how many acres, if placed upon the open market for sale, would be purchased and devoted to commercial uses, he said about four acres. Asked if those four acres were worth $1750 an acre, he said approximately $7,000 to $8,000 an acre. Plaintiff repeated the question several times in different forms and then asked, somewhat argumentatively, 'so do I understand that in your opinion this highway frontage on these parcels would be worth around seven, $8,000 dollars an acre if placed upon the open market for sale.' The witness replied, 'I investigated one parcel there that I had heard an offer had been made on it, I understand Mr. Pelliccione's piece, ----' Plaintiff's counsel interrupted, objecting that the answer was not responsive. The court ruled that the witness had not yet answered and that plaintiff could move to strike after the answer was made, if not responsive. The witness answered, 'yes, as a matter of fact, Mr. Pelliccione was offered $7,000 for 200 feet.' Plaintiff's counsel thereupon said 'I think, for the record, I'll move the latter be stricken.' The court denied the motion, saying 'it's explanatory of his answer.' That, we think, was a correct ruling in response to the particular objection made. It is too late now for plaintiff for the first time to urge that the answer was incompetent or irrelevant.
Upon redirect examination of the same witness, defendants' counsel asked him, concerning this offer, the acreage and the type of use involved. Plaintiff objected as incompetent, irrelevant and immaterial. The court allowed the question on the ground that evidence of the offer came in on cross-examination. The witness answered that the offer was for an area about 200 by 200 feet for a service station. This was explanatory and definitive of evidence that came in during the cross-examination and added nothing except that the particular commercial use for which the offer was made was for a service station. We do not think it materially affected the jury's verdict.
The witness next testified that the Shell Oil Company tried to buy a piece of that frontage for a service station and that the owner was approached for a motel site on that property, without mentioning the price, if any, that was offered; and that as to all of these frontages everyone has refused to sell them even at the prices they were offered, because they wanted free ingress and egress. Plaintiff did not object to this new line of questions. When the court overruled his objection to questions concerning the particular offer which came out on cross-examination, plaintiff's counsel asked and the court allowed the 'same objection * * * to the whole line of questions.' That 'whole line' ended when defendants' counsel and the witness turned to other offers for this and other parcels. It is too late now for plaintiff to object. Moreover, this witness' testimony concerning other offers was largely cumulative of evidence that had already gone in, without objection, by cross-examination of defendants' witness Hulting. He testified: the owner of Parcel 6 was approached by people to purchase a motel site; the owner of Parcel 19 probably has received offers many times by somebody who would like to put in a motel or a drive-in restaurant; these properties have been very closely held for many years, which does not indicate there would not be a motel if anybody could have secured one of these properties. The witness understood that offers had been turned down for such uses.
The next assignment of error presents a more difficult question. Upon direct examination defendant Pelliccione testified that he considered his property worth $105,000. Asked the reason for that opinion, [253 P.2d 715] he said 'the reason is the frontage, its almost 700 feet * * * that's all business property. The people, they asked in 1947, they wanted to buy it,' to which plaintiff objected as irrelevant and incompetent. Defendants' counsel supported the question and the answer upon the basis of Long Beach City High School Dist. v. Stewart, 30 Cal.2d 763, 185 P.2d 585, 173 A.L.R. 249, and the court overruled the objection. The witness then described the offer as made in 1947 for one acre for a motel site at a price of $7,000.
That was clearly erroneous if the law as enunciated in some of the earlier decisions still obtains. According to those decisions valuation witnesses 'can not, upon the direct examination, be allowed to testify as to particular transactions, such as sales of adjoining lands, how much has been offered and refused for adjoining lands of like quality and location, or for the land in question, or any part thereof, or how much the company have been compelled to pay in other and like cases--notwithstanding those transactions may constitute the source of their knowledge. If this was allowed, the other side would have a right to controvert each transaction instanced by the witnesses, and investigate its merits, which would lead to as many side issues as transactions, and render the investigation interminable. Upon cross-examination, however, the knowledge of the witnesses, and, therefore, the value of their opinions, may be tested in that mode, if desired by the party in whose interest the examination is conducted.' Central Pac. R. Co. v. Pearson, 35 Cal. 247, 262. See also Santa Ana v. Harlin, 99 Cal. 538, 544-545, 34 P. 224, and Merchants' Trust Co. v. Hopkins, 103 Cal.App. 473, 478-479, 284 P. 1072.
That rule was modified as to 'expert witnesses' when in 1937 a statute was enacted which expressly declares that 'Whenever an expert witness gives his opinion, he may, upon direct examination, be asked to state [his] reasons for such opinion, and he may be fully cross-examined thereon by opposing counsel.' Code of Civ.Proc., § 1872. (Emphasis added.)
The old rule was, in effect, declared inapplicable to a defendant landowner valuation witness in a condemnation suit when in 1947 the Supreme Court held it error not to permit such a witness, upon direct examination, to give the reason for his opinion. Long Beach City H. S. Dist. v. Stewart, supra, 30 Cal.2d 763, 185 P.2d 585, 173 A.L.R. 249. The court in that case did not find it necessary to determine whether the witness was an 'expert witness' within the meaning of section 1872 of the code. The court found other grounds for holding it proper to ask a landowner valuation witness, upon direct examination, to state the reasons for his opinion on market value. 'It is a general rule that an opinion is worth no more than the reasons upon which it is based. [Citations.] It has long been the rule in will contests that non-expert witnesses may give their opinions on the issue of competency, but it has been consistently held that 'it is not the mere opinions which are of importance but the reasons given in support of such opinions.' See Estate of Buthmann, supra, 55 Cal.App.2d 585, 591, 131 P.2d 7, 10, and cases there cited. While there are circumstances in which an opinion, given without a statement of reasons, may be properly considered by the trier of the facts (Lumbermen's Mutual Casualty Co. v. Industrial Acc. Comm., 29 Cal.2d 492, 500, 501, 175 P.2d 823), the weight to be ordinarily given to such opinions depends entirely upon the reasons given in support thereof. Accordingly, we hold that appellant should have been permitted to state the reasons for his opinion on market value. If there is any language in County of Los Angeles v. Signal Realty Co., 86 Cal.App. 704, 261 P. 536, which would tend to indicate that an owner of property cannot give the reasons upon which his opinion as to market value is based, such language cannot be approved.' 30 Cal.2d at page 773, 185 P.2d at page 590, 173 A.L.R. 249.
That would seem quite clearly to sanction the very question asked of Pelliccione in this case: 'What is the reason for that opinion?' Yet, in Heimann v. City of Los [253 P.2d 716] Angeles, 30 Cal.2d 746, 185 P.2d 597, an action for damages caused by the construction of a viaduct, the Supreme Court held that the 'trial court properly refused to allow witnesses for plaintiffs to testify on direct examination to prices paid by the city [the condemnor] for neighboring property.' 30 Cal.2d at page 754, 185 P.2d at page 602. Perhaps in the Heimann case the rejected offer was in the nature of a tender of independent evidence of value instead of a statement of the 'reasons,' good or bad, for the witness' opinion. That would be in harmony with City of Los Angeles v. Cole, 28 Cal.2d 509, 516-518, 170 P.2d 928, which sanctions evidence of such sales by way of cross-examination when followed by instructions that the price paid the condemnor for other property is not a proper basis for determining the market value of the property in question and is to be considered for the limited purpose of testing the fairness or honesty of the opinion given by the witness. That would also harmonize with the situation which obtained in Re Estate of Buthmann, 55 Cal.App.2d 585, 131 P.2d 7, cited with approval in Long Beach City H. S. Dist. v. Stewart, supra, 30 Cal.2d 763, 773, 185 P.2d 585, 173 A.L.R. 249. In the Buthmann case non-expert witnesses gave their opinions as to the competency of the testatrix and also their reasons for those opinions. Both the trial and the reviewing courts deemed those reasons insufficient support for the opinions expressed. That suggests that a landowner valuation witness may be asked, on direct examination, to state his reasons and if he states any that do not furnish a proper basis for determining market value, they are available for the use of the jury in appraising his opinion, under appropriate instructions comparable to instructions concerning the use of such evidence when developed on cross-examination.
Even if the rule expressed in the Cole and Heimann cases is one of absolute exclusion it should not be extended beyond its scope, that of excluding evidence of sales of other properties to the condemnor. We say this in view of the following comment in Bagdasarian v. Gragnon, 31 Cal.2d 744, 192 P.2d 935: 'It must be recognized that in California a line of decisions has held the value of real property may not be proved by evidence of particular sales ofother similar real property. See, for example, In re Estate of Ross, 171 Cal. 64, 151 P. 1138, and cases there cited. This is the minority view in the United States, and it has been severely criticized. See 118 A.L.R. 869-914; 32 C.J.S., Evidence, § 593, p. 444 et seq.; 2 Wigmore on Evidence, 3d Ed. 1940,§ 463, p. 503 et seq. Although this court has recently held that a party in an eminent domain proceeding may not put in evidence the amount paid by acondemning party to the owners of similar adjacent lands (City of Los Angeles v. Cole, 28 Cal.2d 509, 170 P.2d 928; Heimann v. City of Los Angeles, 30 Cal.2d 746, 185 P.2d 597), these decisions do not necessarily constitute a reiteration of the general rule of absolute exclusion, since a sale to a condemning party may be affected by factors not present in an ordinary private sale. As appears from the annotation in 118 A.L.R. at p. 893, the Cole and Heimann cases are in accord with the weight of authority in holding that evidence of this particular type of sale is not admissible to prove value.' 31 Cal.2d at page 756, 192 P.2d at page 942.
Plaintiff has not suggested that the court gave an erroneous instruction or that plaintiff requested any instruction on this subject.
We do not find a basis for reversal of the judgment in the testimony concerning offers to purchase portions of the subject property.
(3) Was evidence of the uses the owners intended to make of their properties erroneously admitted to the prejudice of the plaintiff?
Plaintiff complains of the admission of certain evidence concerning the purposes which motivated defendants in buying the land or in planting certain crops. Plaintiff claims this violated the principle that the market value of the land, not its value for a particular use or to a particular person, furnishes the test. We find no violation of that principle. The questioned evidence [253 P.2d 717] was really a part of a statement or description of the uses to which the property is adapted, not tendered or uses as independent proof of value.
Defendant Ernest E. Filice, one of the owners of Parcel 4, described upon direct examination the uses he had been making of the property. His counsel then asked him if the fact that this property was located on this highway was a factor which entered into his decision to purchase it. He answered 'That is right, that was the sole purpose.' Plaintiff objected to it as incompetent, irrelevant and immaterial (he did not move to strike) and the objection was overruled. The witness then described the accessibility of the property to the highway prior to condemnation and stated he considered both agricultural and business uses the highest and best use of the property. Asked to explain what he meant by that, the witness said the main reason for buying it was that frontage and the good visibility, he having in mind at some future date to take advantage of the commercial uses. Thereupon plaintiff objected to it as incompetent, irrelevant and immaterial, saying 'it is what is the fair market value in the eyes of purchasers generally, not what he bought it for nor what he plans to do or has in mind.' Defendants' counsel said he understood the witness was talking about the highest and best uses of the property, that he did not want any testimony as to some personal idea on the thing and asked the witness if he understood that, and the witness said he did. Plaintiff's motion to strike was denied.
Later, explaining how he arrived at the amount of the severance damage, Filice again said that when he bought the property with the idea in mind of the long frontage and good visibility, he had in mind at some future date to erect some kind of business on that frontage, whether a gas station or restaurant or fruit stand, but the construction of the fence eliminates all that. Plaintiff objected on the same ground as before. Defendants' counsel contended that the witness was really speaking about the highest and best uses and that it was proper for the owner to have those uses in mind. He also invoked Long Beach City H. S. Dist. v. Stewart, 30 Cal.2d 763, 185 P.2d 585, 173 A.L.R. 249, claiming it sanctioned such a witness giving the reasons upon which his opinion is based. The court overruled plaintiff's objection and denied its motion to strike.
Of similar import was the testimony of defendant Ercole Pelliccione. Upon direct examination he was asked to state the reason for the value he had put upon his Parcel 6. He said, 'all of the frontage it's all in business property, a person could put a gasoline station, store, restaurant, anything, a fruit stand; that is why I planted two acres of cherries in 1942-'48.'
Upon cross-examination, defendants' expert Challen described the uses made of Parcel 7, mentioning the various crops. Asked what acreage other than prunes were devoted to fruits, the witness said, 'I couldn't tell you the exact acreage. I know that he planted diversified fruit for the purpose of selling--for the purpose of retailing right from his property there.' Plaintiff moved that the answer go out as not responsive. The court denied the motion saying 'well it might not technically be responsive, Counsel, but those matters should not be stricken from the record. You have every opportunity of continuing your cross-examination to clear up anything that might need it.' Plaintiff's counsel responded 'All right' and continued with his questions concerning the other types of fruit planted. It is now too late for the first time to claim that this evidence of the stated purpose of the diversified planting was incompetent and irrelevant. Nor does it appear that such evidence would be vulnerable to such an objection if timely made. It is descriptive of one of the uses to which the property is adapted.
Moreover, this testimony is but cumulative of evidence that went in without any objection from the plaintiff. See Mullanix v. Basich, 67 Cal.App.2d 675, 679, 155 P.2d 130. Upon cross-examination defendants' expert Hulting testified that one of the reasons strawberries were planted on Parcel 6 was that they could be marketed from the property. He also said that most [253 P.2d 718] of the growers all through this area are putting in mixed orchards, 'so they could be sold' on the highway, a use that is being taken away. In respect to Parcel 4, Challen testified upon direct, without objection by plaintiff, that the owner had put in a diversified orchard in order to sell his commodities on the highway, 'which proves the fact that that property does have commercial value; and the rest of them [landowners] have the same reasons, or others, when they bought their property,' the 'selling of fruit on the highway.'
Finally, the jury was instructed that whatever purposes the defendants had in connection with the future use of the property could add nothing to its market value; the defeat of any such purpose by condemnation was not a matter of compensation; a use existing or contemplated is distinct from the market value of the property; value in use is not to be considered in determining market value; a plan which defendant may have had for improvement of the property adds nothing to its market value and, if affected by condemnation, however much a disappointment, is not a matter of compensation. Presumably, the jury observed those instructions in making the awards.
The judicial decisions invoked by plaintiff are not inconsistent with the views we have expressed. Sacramento Southern R. Co. v. Heilbron, 156 Cal. 408, 104 P. 979, stands for the broad general principle that market value is the test, not value to the owner or condemnor, hence that value in terms of money for a particular use is not admissible. In San Joaquin & Kings River Canal & Irrigation Co. v. Stevinson, 63 Cal.App. 767, 220 P. 427, the evidence deemed improper was of an elaborate scheme for the irrigation and reclamation of the land, including the details and the estimated costs of construction and maintenance. Nothing of that sort is involved here. In City of Los Angeles v. Kerckhoff-Cuzner Co., 15 Cal.App. 676, 115 P. 654, the trial court excluded a diagram of the area involved, showing existing and contemplated improvements. The reviewing court approved that ruling but 'made it quite clear that evidence of proposed improvements may be admissible to show adaptability of the land for that use * * *.' City of Daly City v. Smith, 110 Cal.App.2d 524, 532, 243 P.2d 46, 51. San Diego Land & Town Co. v. Neale, 78 Cal. 63, 20 P. 372, 376, 3 L.R.A. 83, sanctioned evidence of the value of the defendant's property 'as a reservoir site' but not the inclusion of the increase in value, if any, arising from the condemnor's proposed improvements. Joint Highway Dist. No. 9 v. Ocean Shore Railroad Co., 128 Cal.App. 743, 18 P.2d 413, furnishes an excellent discussion of the difference between value in use and value in exchange, 128 Cal.App. at pages 753-756, 18 P.2d at page 419, and treats 'market value of the land for its highest available use' the 'same as the market value of the land.' 128 Cal.App. at page 759, 18 P.2d at page 419.
In our case, the evidence of the owners' plans for the use of the property was really a part of the description of the uses to which the land is adapted, and was not expressed in terms of money value. In view of these factors and the instructions given, we do not see how the plaintiff could have suffered any possible prejudice.
(4) Was evidence of sales of other property erroneously admitted to the prejudice of the plaintiff?
By cross-examination of defendants' expert Hulting, plaintiff put in evidence the prices at which various other properties in the vicinity had been sold. Those prices, seemingly, were at variance with the valuation which Hulting had placed upon the defendants' properties. Upon redirect, over plaintiff's objection, Hulting narrated the various factors which tended to reconcile those prices with his valuation. For example, one sale occurred several years before and prices had risen since then. Upon the cross-examination of defendants' expert Weiner, similar information concerning sales of other properties was developed and upon his redirect examination similar explanations of those particular sales were put in evidence.
Plaintiff claims it was error to allow any such questions of either witness upon [253 P.2d 719] redirect even though confined, as in this case, to the specific sales and sale prices brought out by the plaintiff upon cross-examination of the same witness. We are aware of no such legal principle. It would, indeed, be an artificial and inequitable rule which would permit a cross-examiner to put in evidence the price realized at a forced sale and not permit the witness, upon redirect, to inform the trier of the facts that it was a forced sale. The purpose of allowing questions concerning sales of other properties upon cross-examination is that of testing the honesty or fairness of the witness' opinion. The similarity of such other properties to those in suit, and the circumstances under which sold (as reflecting market value at the time of the taking, or not) would seem part of the test, for development upon redirect if not brought out upon cross-examination.
These are factors which the appellate court probably had in mind in East Bay Municipal Utility Dist. v. Kieffer, supra, 99 Cal.App. 240, 278 P. 476, 279 P. 178. One of the defendant's witnesses was asked, upon cross-examination, regarding sales of land at another reservoir site than the one in suit. In an effort to account for the low prices paid for land at the other site, the witness testified it had been necessary to move a railroad at a cost of $5,000,000. On redirect, he was asked why he included the $5,000,000 in the cost of that reservoir. The plaintiff objected and its objection was sustained. 'While the objection might well have been overruled, no prejudice wa sustained by appellant by reason of the ruling made. The reason sought to be shown * * * is perfectly obvious and one which every juror must have inferred from the facts already proved.' 99 Cal.App. at page 252, 278 P. at page 481, 279 P. 178. If the reason had not been obvious, then doubtless it would have been prejudicial error to rule out the inquiry.
The principle here involved is of general application. It finds statutory expression in section 2050 of the Code of Civil Procedure: 'A witness once examined cannot be re-examined as to the same matter without leave of the court, but he may be re-examined as to any new matter upon which he has been examined by the adverse party.'
An illustration of the application of this principle in a valuation, although not eminent domain, case is furnished by Pedley v. Doyle, 177 Cal. 284, 170 P. 602. One of the plaintiff's witnesses was of the opinion that $15.00 per acre per year was the fair rental value of certain land and upon cross-examination he said he based his opinion largely on the possibility that the land had been renting to Chinese for vegetable purposes at $15.00 per acre, or possibly more; he did not know whether it could be rented for that much in the open market. On redirect it developed that according to his present knowledge and information gathered by him, an even higher rental had been obtained from some of the Chinese gardeners. The defendant, appealing, predicated error upon this redirect examination. The Supreme Court held that such evidence was properly admitted. 'The subject was introduced by defendant himself, and it was perfectly proper for plaintiff to bring out on redirect examination testimony tending to demonstrate how much dependence the witness, in reaching his estimate of reasonable rental value of this particular tract, had placed upon the knowledge he had obtained of prices paid by a certain class of renters, namely Chinese gardeners.' 177 Cal. at pages 288-289, 170 P. at page 603.
With one exception, none of plaintiff's California cases involves facts comparable to those here involved, that is, redirect examination confined to explanation of other sales which the opposite party had developed upon cross-examination. In City of Los Angeles v. Hughes, 202 Cal. 731, 736, 262 P. 737, it was deemed error to allow a witness, on direct examination, to give evidence of specific sales upon which his figures were based. In Reclamation Dist. No. 730 v. Inglin, 31 Cla.App. 495, 160 P. 1098, a witness for the plaintiff valued the land taken at $50 an acre. Upon cross-examination his attention was called to several sales at higher prices. On redirect he testified that six named landowners sold to the district for $50 an acre Upon re-cross, he said he fixed his valuation [253 P.2d 720] simply by the standard of valuation which prevailed in the transfers to the district mentioned by him. The reviewing court held that defendant's objection to the question on redirect and his motion to strike out all of that witness' testimony, should have been granted. Quite obviously, in the Hughes and the Inglin cases the evidence concerning sales of other lands was improperly offered as independent proof of value and was in no way limited to explanation of sales and sales prices brought out during cross-examination.
The evidence of sales of other properties was given or tendered upon direct examination in Re Estate of Ross, 171 Cal. 64, 69, 151 P. 1138, and in Hibernia Sav., etc., Soc. v. Ellis Estate Co., 132 Cal.App. 408, 411, 22 P.2d 806. Such evidence was tendered as independent proof of value in Dickey v. Dunn, 80 Cal.App. 724, 728, 252 P. 770, and Merchants Trust Co. v. Hopkins, 103 Cal.App. 473, 284 P. 1072. In Thompson v. Stoakes, 46 Cal.App.2d 285, 292-293, 115 P.2d 830, there was an attempt, upon direct examination, to show the price at which the subject property had been sold. In City of Los Angeles v. Deacon, 119 Cal.App. 491, 7 P.2d 378, evidence of net profits, deemed improper, was given upon direct examination. Palladine v. Imperial Valley F. L. Ass'n, 65 Cal.App. 727, 225 P. 291, stands for the principle that it is error to refuse to instruct a jury that in determining the fair market value of the land in question, they should not consider whether land of similar character could have been purchased at a lower price in other localities, even though such evidence was properly introduced upon the cross-examination of a valuation witness.
Disapproval of this extension of the 'exclusionary rule to evidence of sales of the identical property in question' has been expressed in Bagdasarian v. Gragnon, supra, 31 Cal.2d 744, 758, 192 P.2d 935, 943.
In Atchison, T. & S. F. Railway Co. v. Southern Pac. Co., 13 Cal.App.2d 505, 57 P.2d 575, it appeared that the trial court allowed certain valuation witnesses upon redirect examination to testify concerning the significant features of the sales of certain other properties which had been developed upon cross-examination of those witnesses. The court treated such explanatory testimony upon redirect as if it were erroneous, apparently assuming without detailed analysis that the problem upon redirect is precisely the same as upon direct, regardless of what may have been developed upon cross-examination. It gave considerable attention to the question whether the evidence was prejudicial and concluded that it was not, saying 'In a case where as much testimony was taken as in the case at bar, we cannot conceive that such an irregularity was emphasized in the minds of the jury to prejudice them.' 13 Cal.App.2d at page 512, 57 P.2d at page 579. Under those circumstances we do not deem the decision in that case determinative of the issue now under discussion.
Finally, in our case the jury was instructed concerning the interrogation of these witnesses as to their knowledge of sales of other property and was advised that such questions were permitted only for the purpose of testing the fairness or honesty of their opinions as to market value of the properties in question and were not to be considered by the jury for the purpose of arriving at the actual market value of the properties in question. The jury, presumably, observed this instruction.
We consider that it was not error to admit the evidence of other sales upon the redirect examination of the witnesses mentioned and that if any error were involved that evidence could not have loomed sufficiently large in the minds of the jury to prejudice them.
(5) Was the jury erroneously instructed concerning the existing right of access to the highway, to the prejudice of the plaintiff?
Concerning the defendants' right of access the court advised the jury: 'The owner of land abutting on a street or highway has a private right in such street or highway distinct from that of the public for the purpose of access to and egress [253 P.2d 721] from his land which cannot be taken nor materially interfered with without just compensation and this is so although another owns the fee in the highway. An abutting owner has the right to a free and convenient use of and access to the highway on which his property abuts. This right of ingress and egress attaches to the land and is a right of property as fully as is the land itself, and any act by which that easement is destroyed or substantially impaired, for the benefit of the public is a damage to the land itself, within the meaning of the constitutional provision under which the owner is entitled to compensation.'
Plaintiff claims that this instruction erroneously (1) ignored the thought that the right of access is confined to that which is reasonable for the purpose to which the property is adapted, (2) omitted the fact that such a right is not unlimited but is subject to public control and regulation and is generally subordinate to normal highway uses to which the public may devote its highway, and (3) described the right as unqualified and absolute.
On this subject plaintiff requested and the court refused the following instruction: 'Before the taking of access rights by the State an abutting owner did not have the right to insist that the authorities construct and repair roads in such a manner that he might travel unobstructed directly from the highway to any portion of his adjoining land. Generally speaking, an abutting land owner on a public highway has a special easement and user in the public road for access purposes, and this is a property right which can not be damaged or taken from him without due compensation. But an owner is not entitled, as against the public, to access to his lands at all points in the boundary between it and the highway, although entire access cannot be cut off. If he has free and convenient access to his property and his means of ingress and egress are not substantially interfered with by the public, he has no cause for complaint.'
The instruction given comports with the concept of 'the abutting property owner's right to a free and convenient use of * * * the highway on which his property abuts' as defined in People v. Ricciardi, 23 Cal.2d 390, 397-398, 144 P.2d 799, 803. See also Rose v. State of California, 19 Cal.2d 713, 727-733, 123 P.2d 505; Bacich v. Board of Control, 23 Cal.2d 343, 349-355, 144 P.2d 818; Holloway v. Purcell, 35 Cal.2d 220, 229, 230, 217 P.2d 665. It would have been well had the jury also been told that the 'extent of the easement of access may be said to be that which is reasonably required giving consideration to all the purposes to which the property is adapted.' See Bacich v. Board of Control, supra, 23 Cal.2d 343, 352, 144 P.2d 818, 824. However, that thought is reasonably inferable from the instruction given, that the abutting owner has the right to a 'free and convenient use of and access to the highway.' The requested instruction was no better in that regard. It, too, used the words 'free and convenient access.' Additionally, it would have told the jury that an abutting owner does not have access 'at all points' in the boundary between his land and the highway, 'although entire access can not be cut off,' and that he does 'not have the right to insist that the authorities construct and repair roads in such a manner that he might travel from the highway to any portion of his adjoining land,' neither of which concepts is appropriate to the facts of this case. Plaintiff's requested instruction was based upon comments of this court made in Genazzi v. County of Marin, 88 Cal.App. 545, 263 P. 825. The subject there under discussion was the construction, along the highway, of a ditch which the abutting landowner could bridge at any convenient point. That bears no analogy to the construction of a steel fence which permanently blocks access along the entire frontage save for the 20 foot openings, a permanent blockage of approximately 98.8% of the frontage of one parcel and of 97.7%, 94.6%, 92.6%, and 88.1%, respectively, of the frontages of the others. Plaintiff's instruction could not have helped, would only have confused, the jury.
(6) Was the jury erroneously instructed concerning the defendant landowners as valuation witnesses? [253 P.2d 722] Plaintiff complains of an instruction that 'Owners are presumed to know the value of their property, and being permitted under the law to testify thereto, their evidence in that regard is entitled to be weighed and considered by the jury.' Plaintiff says that the court thereby improperly enhanced the credibility of such witnesses in the eyes of the jury.
This instruction finds support, as a statement of the law, in Los Angeles County F. C. Dist. v. Abbot, 24 Cal.App.2d 728, 737-738, 76 P.2d 188, 193.
The court informed the jury of the need of submitting evidence of values to the jury through the testimony of persons qualified to express opinions thereon. It then stated that where witnesses qualified as experts in a particular field of knowledge give their opinions, those opinions are for the assistance of the jury, not to invade its functions; the responsibility of decision rests with the jury; it is its duty to evaluate and appraise the testimony of witnesses who express opinions. It was natural and appropriate next to tell the jury that the defendant landowners were also qualified to express their opinions as to the value of their own properites, evidence to be weighed and considered by the jury. That is what the court did by means of the questioned instruction. Although that instruction might have been more aptly worded, we do not think the jury was misled, especially in view of the fact that the awards made were far below the amounts given in evidence by the defendants as witnesses.
(7) Was the jury erroneously instructed to reconcile the irreconcilable?
Plaintiff claims that the opinions expressed as to values and severance damages were irreconcilable and, therefore, it was prejudicial error to instruct the jury 'if possible to reconcile the conflicting testimony and to give it all due weight.'
The quoted words correctly define the duty of the jury in that regard. Darling v. Pacific Electric R. Co., 197 Cal. 702, 708, 242 P. 703; Boens v. Bennett, 20 Cal.App.2d 477, 483, 67 P.2d 715.
There is nothing misleading or confusing about those words, especially when read in their context. They occurred at the end of the following instruction. 'Determine on the one hand if witnesses have unduly diminished values, or the elements of value or injury which enter into their estimates, or whether they may have omitted altogether elements of value or of injury which in fact do exist, and should be considered. Determine on the other hand if witnesses have exaggerated the values which they have placed on the land, or any part of it; or have exaggerated the elements of injury which have entered into their estimates of depreciated value, or whether they have included estimates of injury which do not exist, or which should not have been considered. Determine if the theory upon which the witnesses on either side proceeded in reaching their conclusions were sound or fallacious. Apply these and similar tests in order that you may be able, if possible, to reconcile the conflicting testimony and to give it all due weight, and to arrive at a just verdict.'
That was not, as plaintiff contends, an instruction 'to cut somewhere in between' the divergent amounts in evidence, especially in view of other instructions which impressed upon the jury its duty to determine the credit that should be given the testimony of each witness and instructions concerning burden of proof, preponderance of evidence, and other related subjects.
(8) Did the court erroneously advise the jury that in ascertaining market value they could consider the purpose for which the property was being taken by the State?
The questioned instruction read as follows: 'Just compensation which is guaranteed to the owner whose property is to be taken or damaged for public use, is its market value and the market value of property is determined by a consideration of all of the uses to which it may be applied, as well as the purposes for which it is adapted. For the purpose of ascertaining its value, it is proper to show its condition and surroundings, the uses to which it has been applied, and its capabilities for other uses, including that for which its condemnation [253 P.2d 723] is sought. Its value is not limited either by that of its present use or by the use for which it is sought, since either of these may be less than its actual market value. The owner is entitled to its highest market value for any use to which it is adapted, and any advantage that the property has, present or prospective, by virtue of its position, and for which it may be available, constitutes an element in its value, which is to be considered by the Jury in determining the compensation to be awarded the owner, and which the owner is entitled to show to the Jury by any competent evidence.' The asserted error was more academic than real. Under the circumstances of the case we do not see how plaintiff could have been prejudiced by the court telling the jury that for the purpose of ascertaining market value it was proper to show the condition and surroundings of the property taken, the uses to which it has been applied and its capabilities for other uses, 'including that for which its condemnation is sought.' Appellant points to no evidence of the capability or value of this property for use as a highway. Respondents assert there is no such evidence, and we have found none. The court admonished the jury to fix the just compensation 'in accordance with the evidence given in this case' and that it was proper to consider 'the evidence that has been introduced as to the uses to which the property may be put' in determining the market value, but that 'its special value to the State as distinguished from others who may or may not possess the power to condemn, must be excluded as an element of market value.'
Obviously, there was here involved no such question as that involved in City of Redding v. Diestelhorst, 15 Cal.App.2d 184, 189, 59 P.2d 177, invoked by plaintiff herein. In the Diestelhorst case the reviewing court approved an order which struck certain volunteer testimony that was based 'solely upon the ground that the city of Redding [the condemnor] needed it [the property condemned] to carry out the terms of its contract with the California Highway Commission [to provide a bridge site], and that there was no potential demand for bridge sites from any other source.' 15 Cal.App.2d at pages 193-194, 59 P.2d at page 181.
The judgment appealed from is affirmed.
PETERS, P. J., and BRAY, J., concur.