Opinion
Hearing Granted by Supreme Court July 3, 1928.
Appeal from Superior Court, City and County of San Francisco; E. P. Shortall, Judge.
Eminent domain proceeding by the City and County of San Francisco against the Tillman Estate Company. Verdict for plaintiff fixing value of defendant’s property, and, from an order granting a new trial, defendant appeals. Affirmed.
COUNSEL
Henry C. McPike, of Oakland, for appellant.
John J. O’Toole, City Atty., and Charles J. McDonnell, Deputy City Atty., both of San Francisco, for respondent.
OPINION
NOURSE, J.
Plaintiff sued in eminent domain to condemn real property for public school purposes. The cause was tried before a jury, which returned a verdict for plaintiff, fixing the value of the defendant’s property at $50,000. The trial court granted plaintiff’s motion for a new trial, and from this order the defendant has appealed upon a typewritten record.
The complaint was in the usual form. It contained all the allegations necessary to a proceeding in eminent domain, properly omitting any allegation as to the value of the property which the city desired to take. The answer, as amended, admitted the material allegations of the complaint, except the necessity for the use of the property sought, and affirmatively alleged the value of the property to be not less than $75,000. Proofs were submitted to the court establishing a "prima facie" case on all issues, save that of the value of the property, and these were determined by the court without contest. In accordance with the stipulation of the parties the jury was taken to view the premises and the plaintiff rested its case. The defendant thereupon rested without offering any evidence on the issue of value, and insisted that the burden of proving value was on the plaintiff. The trial judge ruled with the defendant, requiring the plaintiff, over its objection, to reopen, its case for the purpose of proving value, and thereafter permitted defendant, over objection of plaintiff, to tender evidence in rebuttal. During the course of the direct examination of one of its witnesses the defendant was permitted to question her in detail as to the various transactions and particular sales of other lands in the immediate neighborhood in which she had participated, and this is assigned as one of the errors justifying the order for a new trial.
That the trial court improperly reversed the order of proof of value admits of no doubt. Counsel for the city went into court relying upon a method of procedure accepted and followed by all the trial court of the state and affirmed by all decisions. The rule is stated in Monterey County v. Cushing 83 Cal. 509, 510, 23 P. 701, where it is said:
"In California the burden as to value is on the defendant. Section 1244 of the Code of Civil Procedure provides what the complaint shall contain, and it does not mention value or damage. And if the plaintiff is not required to allege value or damage, he is not required to prove it. This was the view taken in Cal. S. R. R. Co. v. S. P. R. R. Co., 67 Cal. 63, 64 [7 P. 123]."
The plaintiff having established its "prima facie" case, and the jury having viewed the premises, the plaintiff was entitled to rest and ask the jury to fix the value of the property it had viewed. The defendant, having declined to offer any proof of value, could not complain at any verdict which the jury might have returned. When, therefore, the trial judge required plaintiff to assume the burden of making proof of value, he committed an "error in law," within the provision of section 657, Code of Civil Procedure, specifying the grounds for which a new trial may be granted. By thus reversing the well-established order of proof, the plaintiff was taken unprepared and the ruling was unquestionably to its prejudice.
But upon another ground the order must be sustained. The defendant was permitted, over objection, to ask his witness on her examination in chief details of all the transactions, in real estate in which she had participated during a period of two years or more. This course of examination is defended as tending to show the qualifications of the witness to testify as an expert. It seems to have been offered for the purpose of showing the activity in sales of real estate in the vicinity of the defendant’s property and to show the possibility of increased value if the property were subdivided. The impropriety of this method of examination is settled by a long course of procedure in our trial courts and the unanimous decisions of the courts on appeal. See Central P. R. Co. v. Pearson, 35 Cal. 247, 262; Reclamation Dist. No. 730 v. Inglin, 31 Cal.App. 495, 500, 160 P. 1098, and cases cited.
If there is any virtue in the doctrine of "stare decisis," it is particularly appropriate to a proceeding of this kind, which involves the constitutional rights of the state as well as those of the individual. Rights of property which have grown up under an established method of procedure are better secured by an adherence to such method, leaving to the lawmaking body the duty of providing a different method if a change is deemed necessary.
The order is affirmed.
We concur: KOFORD, P. J.; STURTEVANT, J.