State ex rel. Road Commission v. Hopkins

ELLETT, Justice: This is an appeal by the Utah State Road Commission from a judgment awarding compensation to a landowner for real property taken for the construction of a freeway and for severance damages to the remaining land not taken. There are two assignments of error which require our attention: 1. Did the trial court err in sustaining an objection to the question put to the landowner as to the price he paid for the property five or six years prior to the date of taking? 2. Did the trial court err in admitting into evidence an exhibit prepared by an expert witness showing the land subdivided into residential lots? There are other assignments of error, but we deem them to be of no consequence after we dispose of the two assignments above set out. As a general rule, the price paid for the land being condemned is competent evidence if not too remote in time. In this case the value of the property was to be determined as of July, 1970. It was purchased in January of 1965, some five years prior to the taking. The owner of the land was a witness but had not expressed an opinion as to the value thereof. He was asked on cross-examination how much he paid for the land, and the trial court sustained an objection to the question. [133] The cases seem to sustain the proposition that an owner who expresses an opinion as to value may be asked on cross-examination how much he paid for the property. That, however, is not this case. Whether or not the purchase price of land is admissible in evidence as having some bearing on its present market value depends on the remoteness of time when the purchase was made and on other factors which might exist to cast doubts as to the value of the testimony. It is generally a matter for the court’s discretion in allowing or rejecting the testimony. In this case the trial judge gave his reasons for rejecting the proffered testimony as follows: Well, the matter having been submitted to the Court and the Court under Rule 9 of the Utah Rules of Evidence, taking judicial notice too of the general condition prevailing in Washington County with respect to land values and the real estate market, such facts being generally known and the Court being apprised of such facts by reason of other condemnation matters and other hearings before this Court and also under Rule 45, I believe it is, the Court finds that admission of this evidence as produced in your proffer may tend to confuse the issue or mislead the jury and the Court further finding that it [is] within the discretion of the Court, the objection is sustained. We should not interfere with that ruling unless it manifestly appears that the court abused its discretion. There was evidence that there had been constructed in the City of St. George, Utah, some 75 homes per year for the past three years and that it was estimated that not more than 200 building lots in the city were available. There also was evidence that lots selling for $2500 in 1967 sold for as much as $8,000 in 1971. We are unable to say that the trial court abused its discretion in rejecting the testimony as proffered. As to the second assignment of error set out above, it should be noted that the City of St. George had platted the land in question into blocks and lots with streets indicated, although they had never been laid out on the ground and improved. The lots as shown on the city plat were each 132 feet by 264 feet. One of the expert witnesses, a fee appraiser, divided the land into residential lots of smaller size and showed by his plat, drawn to scale, that 23 building lots could be laid out on the land conforming to the provisions of the city zoning ordinances. The admitted highest and best use to which the land could be put was that for residential purposes; and in order to ex-( [134] press his opinion as to what he thought the property was worth before the taking, the expert witness calculated the number of lots which could be had from the land involved. We suppose that any interested purchaser would also have made similar calculations and would have been interested in the number of lots which could be obtained from the land. There was no attempt to have the jury believe that the lots were actually then divided. It was merely to explain how the expert arrived at his opinion as to the value of the land.1 In the case of Montana State Highway Commission v. Jacobs, 150 Mont. 106, 435 P.2d 274, an expert witness for the landowner had prepared a plat similar to that in the instant case. The trial court received it in evidence over the objection of the State. In affirming the judgment, the Montana Supreme Court said: It is common practice to allow a witness to use such aids as these plats to illustrate his testimony to the jury. Whether the use of these aids is proper rests largely in the sound discretion of the trial judge. Unless there is a manifest abuse of this discretion we will not overturn the lower court’s discretion in the matter. [Citation omitted.] ■ The witnesses placed the value of the land taken and the damage to the remainder of the land by reason of the severance as follows: Value of Severance Total Witness Land Taken Damage Damage State's #1 $35,800.00 $10,700.00 $46,500.00 State's #2 35,867.30 9,074.34 44,941.64 Landowner's #1 76,000.00 3,000.00 79,000.00 Landowner's #2 74,100.00 6,000.00 80,100.00 The jury found 66,500.00 7,000.00 73,500.00 It thus appears that the verdict rendered was within the compass of evidence given to the jury; and since we do not find any prejudicial error in the record, we affirm the judgment. No costs are awarded. TUCKETT, J, concurs. Footnotes [1] 98 C.J.S. Witnesses § 327.