Opinion
No. 5086.
Argued February 6, 1963.
Decided May 28, 1963.
1. In the assessment of damages for the taking for highway purposes of portion of plaintiff's land which he purchased for development and subdivision into house lots according to plan, and had sold some lots therefrom and developed others, testimony of the plaintiff who had wide experience in the construction and selling of houses and the development and subdivision of land as to the before and after value of the land taken, based upon what a prospective purchaser would take into account in determining what the property was worth as a whole if devoted to the sale of building lots, which was its most advantageous use, was properly admitted as a probable aid to the jury.
2. Where a jury is properly instructed on the measure of damages for land taken for highway purposes any deficiencies in the testimony of real estate experts, exposed by careful cross-examination goes to the weight of the testimony rather than its admissibility.
3. In the assessment of damages for the taking for highway purposes of a portion of plaintiff's land which he purchased for development and subdivision into house lots according to plan the question of whether such plan prepared by plaintiff's civil engineer was material was within the discretion of the Trial Court.
4. In such case the fact that a subdivision plan had not been approved by the city did not render it inadmissible as evidence of a contemplated use of the land.
5. The admission of certain rebuttal testimony and the extent of certain cross-examination were matters within the discretion of the Trial Court.
Appeal, under RSA 233:17 (supp), from an assessment of damages made by commissioners appointed by the Governor and Council to lay out Interstate Route 93, awarding condemnation damages to the plaintiff landowner, by reason of a taking in 1960 of certain land owned by him in Manchester, at the intersection of Huse Road and Mooresville Road. Trial by jury resulted in a verdict for the plaintiff in the sum of $35,000. The State's exceptions to the admission of evidence, to the denial of its motions to strike certain evidence and to the denial of its motion to set aside the verdict were reserved and transferred by Keller, J.
The decision in this case was held in abeyance pending argument this month of No. 5121 Parkinson v. State, 104 N.H. 534, decided this day, which involved some similar questions of testimony relating to value in highway condemnation cases.
The plaintiff has been in the business of constructing and selling low-cost homes since 1945 and during this period has sold 700 homes in the course of developing eight subdivisions in the city of Manchester. In 1954 he purchased a forty-five-acre tract located at the intersection of Huse Road and Mooresville Road in Manchester for $21,000. During 1955 to 1957 he developed a part of this tract consisting of approximately fifteen acres on Huse Road south of a Public Service Company right of way by subdividing it into forty-five house lots and building forty-five houses which were sold. During the same period he sold two acres of land fronting on Huse Road to the Public Service Company which held a 100-foot easement over the forty-five-acre tract consisting of about six acres. In 1957 and 1958 the plaintiff built and sold seven homes fronting on Huse Road, on a thirteen-acre tract north of the right of way, between it and Mooresville Road.
On July 19, 1960 the State condemned for highway purposes a seven-acre strip of plaintiff's land directly north of the Public Service Company easement. This taking by the State left the plaintiff with five acres north of the land condemned fronting on Mooresville Road and partly on Huse Road, six acres south of the condemned land under easement to the Public Service Company, approximately two acres between the easement and the taking and 10.09 acres which were low, swampy and of little value.
It could be found that in consequence of the taking, the plaintiff's remaining land between the land taken and Mooresville Road could be developed into only ten house lots, where formerly in combination with the land taken a subdivision of more than forty lots had been planned and staked out. Prior to the taking seven houses had been built and sold and six additional cellar holes dug, in pursuance of this original plan.
There was evidence that following the plaintiff's purchase of the original tract in 1954 its value for residential purposes appreciated substantially, in part because of school construction in the area and because other tracts in the vicinity which were suitable for subdivision had been removed from the market.
Devine, Millimet, McDonough, Stahl Branch (Mr. Joseph A. Millimet orally), for the plaintiff.
William Maynard, Attorney General and Alexander J. Kalinski, Assistant Attorney General (Mr. Kalinski orally), for the State.
The State's exceptions to the admission of evidence, its motion to strike the plaintiff's testimony as to market value and damage by the taking and its motion to set aside the verdict are based primarily on the contention that the plaintiff "did not know what market value meant, or if he did, he was not willing to testify objectively about it with reference to his own land." Our examination of the three volumes of testimony and the exhibits in this case confirms the concession of plaintiff's counsel that "although Roy was an expert real estate subdivider, he was not an expert testifier." The crucial issue is whether the Trial Court could find that the witness was qualified and that his testimony would be of assistance to the jury. Dowling v. Shattuck, 91 N.H. 234; Ricker v. Mathews, 94 N.H. 313, 317; Berry v. State, 103 N.H. 141, 144.
"The opinions of witnesses as to the value of any real estate, goods or chattels may be received as evidence thereof, when it appears to the court that they are qualified to judge of such value." RSA 516:29. This statute was enacted in 1867 to confirm, in effect, the dissenting views of Chief Justice Doe so that "opinion evidence of property values is now received whenever the trial court finds it will probably aid the trier" [of fact]. Eames v. Corporation, 85 N.H. 379, 385. See 7 Wigmore, Evidence (3d ed.) s. 1943, p. 53; Maguire, Hearsay Obscurity — Glimmers of Daylight, 3 N.H. Bar J. 145, 146 (1961); Greene, Eminent Domain in New Hampshire, 1 N.H. Bar J. (No. 3) 12, 18 (1959). We are aware that the testimony of a landowner as to the value of his land may be bottomed in bias. It is not too much to expect that jurors are likewise aware of the tendency of such a witness to consciously or unconsciously inflate his damages from a condemnation of his property and that they will discount it accordingly. West, Preparation and Trial of a Condemnation Case, Fourth Annual Institute on Eminent Domain 67, 103 (The Southwestern Legal Center, 1962).
The disparate estimates of valuation and damages in eminent domain proceedings are not new and will probably continue in the future. Human nature being what it is, there continues to be a painful gap between what the owner demands and the condemnor is prepared to pay. Stratton v. Jaffrey, 102 N.H. 514. In the present case the plaintiff testified in effect that his damages were $58,000, while the State's witnesses testified to damages of $9,300, $14,000 and $17,500 respectively. As was noted in Edgcomb Steel Co. v. State, 100 N.H. 480, 492, the fact that the jury adopted none of the witnesses' figures indicates that the plaintiff's "cross-examination was not without effect."
It was evident that at times the plaintiff during his cross-examination was confused in expressing his concept of market value and that on occasion he was expressing the value of his property to himself rather than the value to a willing seller and a willing buyer. Davis v. State, 94 N.H. 321, 322. Nevertheless the plaintiff's testimony was directed at what a prospective purchaser would take into account in determining what the property was worth as a whole if devoted to the sale of building lots. It was not open to serious question that plaintiff's property was entitled to be valued at its most advantageous use to which it could be placed on the day it was condemned (Emmons v. Company, 83 N.H. 181, 184) and its use for house lots was generally acknowledged in this case to be its most advantageous use. Buena Park School Dist. v. Metrim Corp., 176 Cal.App.2d 255. If this use had been speculative, remote or nebulous, the value of the individual lots would not have been competent evidence on the value of the whole tract. Tigar v. Mystic River Bridge Authority, 329 Mass. 514; Pennsylvania S. V. R. Co. v. Cleary, 125 Pa. 442. However on the record in this case the land development was not a paper tiger and its adaptability for house lots was a genuine use value which the jury were entitled to consider. 4 Nichols, Eminent Domain (3d ed.) s. 12.3142[1].
The ruling of the Trial Court that the plaintiff landowner was qualified witness is supported by the record and the law in this jurisdiction. 3 Wigmore, Evidence (3d ed.) s. 714; Edgcomb Steel Co. v. State, 100 N.H. 480, 492; RSA 516:29. The deficiencies in the plaintiff's testimony, exposed by careful cross-examination, went to the weight of his testimony rather than its admissibility. Edgcomb Steel Co. v. State, supra. In connection with our conclusion that the Trial Court was correct in refusing to set aside the verdict or strike the plaintiff's testimony, it should be emphasized that prior to any testimony in this case the Presiding Judge carefully instructed the jury that they were to determine the value of property as a whole unit "and not add up what separate lots might bring and determine the value that way." Furthermore at the close of the evidence the jury were instructed on market value in accordance with the rules laid down in Edgcomb Steel Co. v. State, 100 N.H. 480, 486-487.
Objection was made to certain plans and subdivision plans that were prepared by a civil engineer employed by the plaintiff. Insofar as the objection was based on the ground that the plans were immaterial, the discretionary authority of the Presiding Judge to admit them was not abused. Tucker v. Hampton, 96 N.H. 28. One subdivision plan admittedly had not been approved by the city but this did not exclude it as evidence of a contemplated use of the land. 4 Nichols, Eminent Domain (3d ed.) s. 12.3142[1] p. 183.
The State objected to the admission of certain rebuttal testimony by the plaintiff's witnesses which it claims was new evidence and not rebuttal evidence. The admissibility of this evidence was discretionary with the Trial Court. Davidson v. Davidson, 80 N.H. 589; Coleman v. Burns, 103 N.H. 313. Moreover the Court instructed the jury that it was not evidence of the value of plaintiff's property but only admitted to test the opinions of the experts testifying for the State. Error is claimed in that the Court did not properly limit the cross-examination of one of the State's experts. The cross-examination related to the factors to be considered in arriving at the market value of a tract of land usable for a subdivision and was proper. See Amoskeag-Lawrence Mills v. State, 101 N.H. 392, 398.
Our examination of the record and briefs in this case convinces us that the trial was free of any prejudicial error and that although the award of damages made by the jury could have been less, it was not excessive. Parkinson v. State, supra. Accordingly the Trial Court's denial of the motion to set aside the verdict was proper.
Judgment on the verdict.
All concurred.