LOS ANGELES COUNTY FLOOD CONTROL DISTRICT v. McNULTY

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District Court of Appeal, Second District, Division 2, California.

LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, Plaintiff and Respondent, v. Billy R. McNULTY, Juanita A. McNulty, Kenneth H. Root, Lavera Root, Cecilia M. Kline, Eloise B. Kline and James M. Kline, Defendants and Appellants.

Civ. 25759.

Decided: July 27, 1962

Francis H. O'Neill and Richard L. Huxtable, Los Angeles, for appellants. Harold W. Kennedy, County Counsel, by David Bernard, Deputy County Counsel, for respondent.

In this eminent domain action defendants Kline, McNulty and Root appeal from the judgment and attempt to appeal from the findings and conclusions ‘and from the portions thereof assessing severance damages and special benefits, each in the sum of Five Thousand ($5,000) Dollars.’ A jury awarded $12,900 for the taking, $5,000 severance damage, and found special benefit to defendants' land to be in the sum of $5,000.

The taking embraced 2.62 acres, known as parcel 30, being a portion of a larger parcel of 38.85 acres situated in the City of Santa Fe Springs, and zoned for industrial purposes. Parcel 30 is a strip of land 72 feet wide and 1583.09 feet long, running southeasterly across the larger parcel and leaving 7.31 acres on the northeast and 28.92 on the southwest side of a flood control channel, the subject of the action, which was built prior to trial under an immediate possession order. Appellants complain of seven alleged errors.

I. First it is said that there was prejudicial error in a ruling which required defendant James M. Kline to reveal the price he had paid for the property in 1956. The valuation date set for the trial was December 28, 1960. Mr. Kline, called as a defense witness, testified to a value of $20,000 per acre for the entire 38.85 acre parcel. There were but five sales which the experts for both sides relied upon as comparable. One of them was made to Kodak Company on March 14, 1958, at $12,300 per acre; one to United Wire Company on September 28, 1959, at $12,750 per acre; another to Southern Pacific Company on February 9, 1960, at $16,000 an acre; a fourth sale by Southern Pacific Company to Food Giant Markets on October 3, 1960, at $24,517 per acre; and the fifth one to Southern Pacific Company on August 12, 1960, at $16,000 an acre. These 1960 purchases were made after plaintiff's flood control channel had been completed and hence with presumptive knowledge of its effect upon the land purchased. The sales to Kodak Company in 1958 and United Wire in 1959 were made before construction of the flood control channel but probably with knowledge of its imminence. The complaint was filed on March 23, 1959, and the initiatory resolution was passed by the Board of Supervisors on February 10, 1959. Defendants' expert, Curtis Young, testified without objection: ‘I would say in my opinion there is an excellent probability that each of those two purchasers knew there was a flood control channel plan.’ This leaves the Kline purchase of 1956 as the only one known to be uninfluenced by the approaching flood control improvement. Kline paid $325,000 for the entire parcel or approximately $8,400 per acre.

The general rule is that an owner who testifies to the value of his land may be asked on cross-examination the price he paid for it. People v. Vinson, 99 Cal.App.2d 100, 102, 221 P.2d 161, 162: ‘Both reason and common sense support the view that if selling prices of comparable property are properly taken into account in forming expert opinions as to value, a recent purchase of the identical property would be of first importance. If, as in the present case, a witness has given consideration to a purchase which took place three years before, the time element goes merely to the weight of his opinion. It is scarcely necessary to add that the widest latitude is allowed in such cross-examination.’ As stated in said quotation the limits of such examination lie within a wide discretion to be exercised by the trial court. (Cf. County of Los Angeles v. Faus, 48 Cal.2d 672, 678, 312 P.2d 680.) If the purchase has occurred at a time and under circumstances which would make it logically persuasive of the value on the evaluation date of the trial there is no error in receiving evidence of the price. Usually the mere lapse of time goes to the weight rather than the competency of the evidence.

In Simmonds v. United States (9 C.A.), 199 F.2d 305, 307, the court dealt with a four-year interval between purchase by owner and valuation date and said, at page 307: ‘[T]he 1944 purchase price affords a basis from which the 1948 value can be measured in light of the economic development of the area, the general increase in land values through the years, and the physical improvements with relation to the property. Any changes in circumstances between 1944 and 1948, as they affect the value of the property, would go to the weight to be given to the 1944 purchase price, but not to the admissibility of such evidence.’ We recognize this as sound reasoning and find no necessity of reviewing cases from other states which receive or exclude a price paid three, four, five or ten years before the trial.

Appellants argue, however, that the 1956 price paid by Kline is not probative of value in December, 1960, because there had been a marked change in the real estate market and values in the Santa Fe vicinity in 1958. The opening brief says, without making any transcript references:

‘All testimony prior to Mr. Kline's taking the stand and throughout the trial, indicated that in approximately 1958 there had been a complete change in the market for industrial property in the vicinity of the subject property. Prior to that time the area had been agricultural in character although there were a few purchasers in the area who had purchased at relatively low prices in the hope that future profits could be made in ultimate re-sale of the property as to industrial users. In approximately 1958, industrial users came into the market and a sudden rise in market values and increase in the trend of rise of market value occurred.’ Testimony of Mr. Bell which is partially quoted in the brief spells no more than the quoted passage, and that is not enough to make the 1956 price inadmissible as a matter of law. Had there been an intervening economic crash, such as that of 1929 and immediate succeeding years, appellants' position might be sustained, but we do not search 928 pages of testimony to find support for appellants' thesis.

Appellants call attention to a ruling made prior to the Kline testimony wherein the court limited proof of other sales to the two years immediately preceding the trial and counsel claims unfairness in the Kline ruling. The record does not quite bear out this argument. Defendants' expert witness Bell was testifying about the trend in market values in the comparable area, said he did not rely in this connection upon the five sales we have mentioned but did have information about sales going back to 1952 or 1953 which were indicative of trends but not helpful in fixing the value of the subject property in 1960. Then followed this colloquy: ‘Q BY MR. HUXTABLE: What is the earliest sale you have got of comparable property? THE COURT: In other words, you are attempting to have him prove the rate or trend of the rate of increase per month of comparable property in that locality? MR. HUXTABLE: That is correct, your Honor. This man is an expert, been in the area 15 years. He has made such a study from numerous transactions. Q Now, each transaction, figure back to 1950—THE COURT: You are not going back that far. I can tell you that. MR. HUXTABLE: Well, the transaction obviously is inadmissible to prove value in 1960 but it may be proper to prove trend over a period of time. [Emphasis added.] I can go through them. The man has lived out there and has a very extensive study. He knows the rate. It is common knowledge to realtors in the area. THE COURT: I will let him go back two years and no more.’ When the question was later posed to Mr. Kline, ‘What did you pay for that property’, which he had bought in 1956, his counsel made these objections: ‘I object to the question, your Honor, as being completely irrelevant and immaterial in this case. This sale is over four years old. There is ample testimony in the record that there is a completely different market for the property now than there was then. The Court itself indicated earlier that sales evidence should be restricted to something within the last two years. We feel that this is quite remote and has no relationship to the value of the subject property after the users, the industrial developers, have actually come into the area. . . . THE COURT: I think there is the distinction, what the owner paid for it. MR. HUXTABLE: Your Honor, if that is a distinction, it makes the evidence that much more prejudicial. It is conceded that Mr. Kline is making a profit upon this property and will make a profit on it when it is sold. The only question is its fair market value on December 28, 1960. The mere fact that the property has increased in value and that the owner is asking more for his property now than he paid for it four and a half years ago has no bearing on this case whatsoever. Mr. Kline could turn around and sell this property to any other buyer at the present market value. He is not compelled to sell it to the County at any figure less than that.’ The objections were overruled and there was no error in this per se. The apparent inconsistency on the part of the court disappears when one considers the fact that counsel for appellant had previously disclaimed any probative value (with respect to December, 1960) in the sales made prior to 1958.

II. Appellants argue that the judgment, which is for $12,900 plus interest, is erroneous because the severance damage of $5,000 stated in the findings is less than the lowest figure given by any expert, namely, $5,650 fixed by Mr. George A. Rix, plaintiff's witness. Reliance is placed upon the cases of People ex rel. Dept. of Public Wks. v. McCullough, 100 Cal.App.2d 101, 223 P.2d 37 and Redevelopment Agency v. Modell, 177 Cal.App.2d 321, 2 Cal.Rptr. 245, which hold that an award exceeding the highest value fixed by an expert witness or one less than the lowest value so fixed is without support in the evidence. In neither case was a petition for hearing in the Supreme Court filed, and so far as we are advised that court has not passed upon the point.1

The first of these cases was decided before County of Los Angeles v. Faus supra, 48 Cal.2d 672, 312 P.2d 680 and the second follows the first without any reference to Faus or its doctrine. Prior to that decision (rendered June 21, 1957) it was the rule of this State that evidence of prices paid upon sales of other properties were not admissible as evidence of the value of the property in suit, that they might be received on cross-examination for the sole purpose of testing the knowledge, accuracy and integrity of the witness; ‘for the sole purpose of discrediting the opinion of the witness' (People v. La Macchia, 41 Cal.2d 738, 745, 264 P.2d 15, 20); but that when so received the jury should be instructed that they could not be considered as any evidence of the value of the property involved in the action. (De Freitas v. Town of Suisun City, 170 Cal. 263, 266, 149 P. 553; Central Pacific R. Co. v. Pearson, 35 Cal. 247, 262; City of Los Angeles v. Deacon, 119 Cal.App. 491, 493–494, 7 P.2d 378; Los Angeles City H. S. Dist. v. Schumann, 78 Cal.App. 353, 358–359, 248 P. 737; Palladine v. Imperial Valley F. L. Assn., 65 Cal.App. 727, 756, 225 P. 291; Merchants' Trust Co. v. Hopkins, 103 Cal.App. 473, 478, 284 P. 1072; City of Los Angeles v. Cole, 28 Cal.2d 509, 518, 170 P.2d 928; People v. La Macchia, supra, 41 Cal.2d 738, 745, 264 P.2d 15.) All this was changed by the Faus decision and evidence of other comparable sales was thereby established as competent and affirmative evidence of the value of the property being condemned when the following precautions prescribed by the Faus opinion are observed: ‘These safeguards are the following: The sales of the other tracts must have been sufficiently near in time, and the other land must be located sufficiently near the land to be valued, and must be sufficiently alike in respect to character, situation, usability, and improvements, to make it clear that the two tracts are comparable in value and that the price realized for the other land may fairly be considered as shedding light on the value of the land in question. Manifestly, the trial judge in applying so vague a standard must be granted a wide discretion.’ (48 Cal.2d 678, 312 P.2d p. 684.) At page 679, 312 P.2d at page 684 the court further said: ‘In taking this position it is recognized that we are overruling a line of decisions in this state that announce a contrary rule. The former rule was contrary to logic, unrealistic, and followed in only a few other states. It was merely a rule of procedure. Therefore, it becomes our duty not to follow decisions that we are convinced are erroneous and obsolete. (See Traynor, J., People v. La Macchia, 41 Cal.2d 738, 754, 264 P.2d 15; Carter, J. and Schauer, J., Heimann v. City of Los Angeles, 30 Cal.2d 746, 760, 185 P.2d 597; Ashburn, J., County of Los Angeles v. Faus, Cal.App., 304 P.2d 257, 270.)’

That the court's ruling recognized proof of other comparable sales as competent and affirmative evidence of the value of the land under condemnation appears from the quoting of Professor Wigmore as follows: “When the conduct of others indicating the nature of a salable article consists in offering this or that sum of money, it creates the phenomena of value, so-called. For evidential purposes, Sale-Value is nothing more than the nature or quality of the article as measured by the money which others show themselves willing to lay out in purchasing it. Their offers of money not merely indicate the value; they are the value; i. e. since value is merely a standard or measure in figures, those sums taken in net potential result are that standard. * * *

‘(There is, however, one question indirectly involving a rule of Evidence,—the question whether the value of another article is receivable in order to show the value of the article in issue. As the price at a sale is, by the law of Damages, conceded to be an element in the test of value (except perhaps in forced sales), this question is usually presented in the form, whether a sale of other property is admissible as evidece of the value of the property in question.

“In answering this question, it is found that the two leading principles already expounded come into joint application,—the principle of Relevancy and the principle of Auxiliary Policy. According to the former, the value or sale-price of the other property is relevant only when the property is substantially similar in conditions; according to the second, it may be excluded, though relevant, if it involves in the case in hand a disproportionate confusion of issues and loss of time. * * *

“It is enough to note (1) in answer to the argument from Relevancy, that since value is a money-estimate of a marketable article possessing certain definable qualities, the value of other marketable articles possessing substantially similar qualities is strongly evidential and is so treated in commercial life; all the argument and protestation conceivable cannot alter the fact that the commercial world perceives and acts on this relevancy; (2) in answer to the argument from Auxiliary Probative Policy, it may be noted that this objection may or may not exist in a given instance, and that the rational and practical way of meeting it is to allow the trial Court in its discretion to exclude such evidence when it does involve a confusion of issues, but otherwise to receive it. * * *

“Except in a few jurisdictions, this class of evidence is received.' (See also Note II, 118 A.L.R. 870; Note II, 174 A.L.R. 387.)' (Pp. 677–678, 312 P.2d p. 683.)

That our Supreme Court was recognizing other sales as substantive evidence of value of the condemned property also appears from the reference to the dissenting opinion of Mr. Justice Carter in City of Los Angeles v. Cole, 28 Cal.2d 509, 523–524, 170 P.2d 928, and the opinions cited in the last quoted parentheses, supra, especially the concurring opinion upon denial of rehearing in County of Los Angeles v. Faus, 304 P.2d 257, which concurring opinion begins at page 267.

Mr. Justice Carter in City of Los Angeles v. Cole, supra, argued that evidence of comparable sales is relevant and competent affirmative evidence of the value of the parcel under condemnation. He said, at page 523 or 28 Cal.2d, at page 936 of 170 P.2d: ‘In my opinion the cases heretofore cited which hold that the sales of other similar property are not admissible to prove value are clearly unsound and should be overruled. Their force is considerably weakened if not destroyed by the addition in 1937 of section 1872 to the Code of Civil Procedure. It reads: ‘Whenever an expert witness gives his opinion, he may, upon direct examination, be asked to state the reasons for such opinion, and he may be fully cross-examined thereon by opposing counsel.’ The main purpose of that section was to do away with the former court made rule that an expert witness could not give his reasons. But if he may give his reasons those reasons may consist of reference to prices paid in sales of similar property in the vicinity. Certainly, he could give such reason for he could be asked on cross-examination concerning other sales. Being able to testify to these sales as reasons, they are direct and probative evidence on the value of the property in controversy.' (Emphasis by Court.) Justices Traynor and Schauer concurred in this dissenting opinion.

Mr. Justice Carter enlarged upon these views in Heimann v. City of Los Angeles, 30 Cal.2d 746, 760, 185 P.2d 597.

Mr. Justice Traynor, in People v. La Macchia, supra, 41 Cal.2d 738, 754, 264 P.2d 15, 26, said: ‘I concur in the judgment. Nevertheless I must protest the obsolescent rule, reaffirmed by the majority, that the value of real property cannot be proved by evidence of sales of comparable real property. Only a few courts follow it, and their number diminishes. The most recent to abandon the rule are the Court of Appeals of New York and the Supreme Court of Nebraska. [Citations.] It has withered under the devastating attacks on it. [Citations.] Why bolster it when it is doomed?

‘Admittedly such evidence, which everyone uses to determine value, is relevant; so relevant that it is hardly credible that it would be excluded.’ Justices Carter and Schauer concurred.

The concurring opinion in County of Los Angeles v. Faus, 304 P.2d 257, 268, puts the matter thus: ‘All this difficulty grows out of the established rule that sales of similar properties are not receivable into evidence upon direct examination; which means not at all unless elicited upon cross-examination; and the fundamental trouble lies in the exclusion of evidence of other sales as proof of market value. The rule is designed to avoid collateral issues and resultant delays. It does not seem to be based on any concept of irrelevancy or immateriality, for it could not rest upon any such considerations.

‘The case of Spring Valley Water-Works v. Drinkhouse, 92 Cal. 528, 533, 28 P. 681, voices the rule (as do many others) that the jurors should know about and consider all matters which a reasonably prudent buyer would weigh in determining upon a purchase.’ (P. 268 of 304 P.2d.)

‘Everyone recognizes that the first thing a prospective buyer of any kind of property wants to know is what other people have paid for like property in the recent past. If interested in a listed stock or bond he goes to New York or American or Los Angeles Stock Exchange quotations and takes note of prices paid on sales, as well as bid and ask prices. If the stock is not listed he goes to the over-the-counter market quotations. If it is wheat or hogs or cotton or other commodities which interest him he goes through much the same procedure to learn what others have paid recently for like property. If a sale has been made of the same real or personal property which is under examination at a trial, evidence of that sale is admissible upon its value. Bagdasarian v. Gragnon, 31 Cal.2d 744, 755–758, 192 P.2d 935. But when the valuation of realty is the problem, court and jury are suddenly cut off from informative sources and forced to rely (theoretically) upon opinions based principally upon undisclosed prices of other sales. The excuse for the rule is avoidance of collateral issues.’ (P. 269 of 304 P.2d.)

‘The main objective of the rule—avoidance of collateral issues—has proved abortive and the procedural aspect of the trial has changed for the worse.

‘The jury, having the case submitted to it upon the least enlightening evidence, is in for a real surprise when the instructions are given. Ever since adoption of the rule excluding other sales on direct it has been stated repeatedly that such sales, though the prices are given on cross-examination, are not evidence of value, are to be considered only upon the imputation of lack of information or trustworthiness of the witness. The jurors are so instructed. They know that sales are the basis on which mankind universally values properties; they have many of the pertinent sales before them; when they hear the judge instruct that those sales are not any evidence of value the jurors who are still listening begin to wonder what is the matter with the judge; but those who are listening, as well as those who are not, pay no attention to that instruction and proceed to do the job the best way they can despite the barriers placed in their path by the court. This whole picture is unrealistic.’ (P. 270 of 304 P.2d.)

The opinion of the Supreme Court in Faus, supra, 48 Cal.2d 672, 312 P.2d 680, also contains the following: ‘The reason given for excluding evidence of sales of similar property in the early case of Central Pacific R. Co. of California v. Pearson, 35 Cal. 247, is not persuasive, is specious, and should no longer be followed.’ (P. 679, 312 P.2d p. 685.) ‘Any statements in the following cases contrary to the rule we now approve are overruled: People v. La Macchia, 41 Cal.2d 738, 264 P.2d 15; Heimann v. City of Los Angeles, 30 Cal.2d 746, 185 P.2d 597; City of Los Angeles v. Cole, 28 Cal.2d 509, 170 P.2d 928; City of Los Angeles v. Hughes, 202 Cal. 731, 262 P. 737; City of San Luis Obispo v. Brizzolara, 100 Cal. 434, 34 P. 1083; Spring Valley Water-Works v. Drinkhouse, 92 Cal. 528, 28 P. 681; Central Pacific R. Co. of California v. Pearson, 35 Cal. 247.’ (P. 680, 312 P.2d p. 685.) This rejects the reasoning of the majority opinions in La Macchia, Heimann, and Cole, and by inevitable inference approves the dissents previously cited on page 679, 312 P.2d 680 of the Faus decision.

Counsel for appellants argued at bar, and some of the superior court judges cling to the view that Faus works a procedural change and nothing else and therefore evidence of other sales still lacks probative value. We hold and think we have demonstrated that the contrary is the case.

The legislature carried the Faus rule into statutory law through enactment of § 1845.5, Code of Civil Procedure, in 1957.2

Of course, the opinion of an expert witness does not establish market value (except perhaps where it is uncontradicted or not qualified or discounted by other competent evidence). First Nat. Bank v. Caldwell, 84 Cal.App. 438, 447, 258 P. 411, 415, says: ‘It is not mandatory that the trial court accept the conclusion of an expert, even though it is uncontradicted. [Citations.]’ Union Hollywood W. Co. v. Los Angeles, 184 Cal. 535, 539, 195 P. 55, 56: ‘The court was not compelled to take the estimate of any witness as a whole. It could accept such opinion on the item as to which it was lowest and reject it on others and compute the value on the combined lowest estimates of all or any number of the witnesses.’ See also, Roberts v. Karr, 178 Cal.App.2d 535, 547, 3 Cal.Rptr. 96. Employees' Participating Ass'n v. Pine, 91 Cal.App.2d 299, 303, 204 P.2d 965, 967: ‘It was stated in the case of Roloff v. Hundeby, 105 Cal.App. 645, at pages 652–653, 288 P. 702, at page 705: ‘Questions of value are almost always matters of opinion, and evidence thereon usually goes no further than to give the court more or less general ideas on the subject. From the evidence thus received a trial court must draw its own conclusions of value by a process of balancing and reconciling, if possible, the varying opinions. * * * [T]he trial court, in an effort to attain an even justice, often exercises a wide discretion in awarding damages.’' McCarthy v. City of Manhattan Beach, 41 Cal.2d 879, 890, 264 P.2d 932, 938: ‘Expert testimony is to be given the weight to which it appears in each case to be justly entitled. In the event of conflict, the law ordinarily makes no distinction between expert testimony and evidence of other character; either may be accepted by the trier of fact as the basis for findings on disputed factual issues. [Citations.]’ Hence, when there are other facts or circumstances in evidence which tend to show the value of the parcel taken or the severance damage to be less than the amount stated by the lowest expert valuation, it is competent for the trial judge or jury to fix such lower figure for the award. Such is the effect of City of Los Angeles v. Morris, 74 Cal.App. 473, 484–485, 241 P. 409. See also, Stratton v. Town of Jaffrey,102 N.H. 514, 162 A.2d 163, 165; In re Appropriation of Easements for Highway Pur., 172 Ohio St. 524, 178 N.W.2d 787, 789; Lee v. Briscoe Irrigation Company (Tex.Civ.App.), 350 S.W.2d 894, 895–898.

In Murray v. United States, 76 U.S.App.D.C. 179, 130 F.2d 442, 444, the property was valued by the jury at $900 less than the amount stated by any expert. It appeared that the jury had also considered evidence as to other sales and had viewed the property. Held that the jury was not bound by the expert opinions and the award was affirmed.

United States v. Magyar (2 C.A.), 273 F.2d 421. The jury accepted the lowest expert value on property taken and then, as the opinion states, ‘reduced somewhat the estimates of easement and severance damages involving adjoining parcels. The jurors viewed the premises and evidently did not credit the prognostication that this land so long used only for farming and pasturage purposes would soon develop as more valuable residential property. We cannot say that they are necessarily wrong.’ (Pp. 421–422.)

We do not undertake to say that the McCullough and Modell decisions are not correct when read in the light of their own facts, but we do not think that County of Los Angeles v. Faus, supra, permits their extension to a situation which involves proof of other comparable sales,—the reason for the rule of those cases ceases at that point.

The jury in this case viewed the property and was instructed properly thereon, as follows: ‘During the course of this trial you viewed the parcel sought to be taken. You may consider what you saw there as additional evidence before you, and you may reach your conclusions not only from the testimony adduced in court but also from your observation during your view of the property.’ The statement in the McCullough case at page 105 of 100 Cal.App.2d, at page 40 of 223 P.2d, that ‘[w]hile the view of the premises is evidence in a condemnation proceeding, it is merely corroborative of the quantitative oral testimony,’ seems not quite correct. The more accurate version is found in McCarthy v. City of Manhattan Beach, supra, 41 Cal.2d 879, 889, 264 P.2d 932, 937: ‘The trial judge's view of plaintiffs' property with the consent of counsel is evidence in the case and ‘may be used alone or with other evidence to support the findings.’ [Citations.]' The view constitutes ‘independent evidence.’ (Neel v. Mannings, Inc., 19 Cal.2d 647, 654, 122 P.2d 576; Gates v. McKinnon, 18 Cal.2d 179, 183, 114 P.2d 576; Sindell v. Smutz, 100 Cal.App.2d 10, 15–16, 222 P.2d 903; Lauder v. Wright Investment Co., 126 Cal.App.2d 147, 151, 271 P.2d 970.)

Downey v. Santa Fe Transportation Co., 134 Cal.App.2d 720, 725, 286 P.2d 40, 44: ‘At the close of the evidence the jury was taken to view the premises. As is stated in Anderson v. State of California, 61 Cal.App.2d 140, 145, 142 P.2d 88, 90: ‘What they saw there is evidence and from its very nature is not incorporated in the written record. We are required to presume that evidence not included in the record supports the verdict and judgment. Haase v. Central Union High School Dist., 27 Cal.App.2d 319, 80 P.2d 1044. Evidence obtained by the trier of fact viewing the premises has been held sufficient to support a judgment.’' These things are true in a condemnation case as in any other (County of San Diego v. Bank of America, 135 Cal.App.2d 143, 149, 286 P.2d 880).

True, the question of severance damage is one of opinion, as, in the last analysis, are the value of the parcel taken and the special benefit, if any. The opinion of a witness, expert or lay, is not binding upon the triers of fact; what they see on the ground well may enable them to discount an expert's opinion to such extent as to warrant a different figure. The jury in this case rejected Mr. Rix' value of $2,050 for the parcel taken in favor of an award of $12,900 therefor, and it is not surprising that they did not follow him on his severance figure.

The Rix severance damage was composed of three items, viz., $3,500 for a siphon in the sewer line under the improved channel; $150 for carrying an eight-inch water line across the same channel; $2,000 for increased cost of trestle carrying railroad across the channel. The jurors, after inspection of the property and considering all the other evidence, well may have rejected one or more of these items in toto, or have reduced the estimated cost to such extent as to bring Rix' figure down from $5,650 to $5,000.

Essentially the jury found that there was no severance damage for it fixed $5,000 for severance and $5,000 for special benefit; these items cancelled each other out. Special benefit operates by way of diminution of severance damage and when the two items equal each other there is no severance damage at all. The statute requires a setoff. Subdivision 3 of § 1248, Code of Civil Procedure, says: ‘[A]nd if the benefit shall be equal to the damages assessed under subdivision 2, the owner of the parcel shall be allowed no compensation except the value of the portion taken; but if the benefit shall be less than the damages so assessed, the former shall be deducted from the latter, and the remainder shall be the only damages allowed in addition to the value.’ To the effect that equality of amounts awarded for severance damage and special benefit results in no severance damage whatever, see also, 17 Cal.Jur.2d § 112, page 681; 29 C.J.S. Eminent Domain § 180, page 1062; Annotation in 145 A.L.R. at page 33. As the jurors thus determined that in fact there was no severance damage, appellants have no legitimate complaint about the figures used in the cancellation equation. Indeed, they make no argument concerning it.

We find no error in this matter of fixing severance damage at less than any amount to which the experts testified.

III. Appellants' next contention is that the court erred prejudicially in excluding certain rebuttal evidence offered by them. After defendants had rested their main case and during plaintiff's proofs, Mr. Ernest A. Withers, a civil engineer employed by plaintiff, testified that this Kline property had a problem of periodic floods which required for solution (regardless of the flood control channel and before it was built) construction of a channel four feet deep, 70 feet wide at the top and 54 feet at the bottom, with two to one foot side slopes, to carry 450 cubic feet per second and requiring use of 2.55 acres of parcel 30, which would be the best location for it; parcel 30 contains 2.62 acres. This evidence tended to show that an expenditure necessary for construction of such a channel would be necessary to make the entire parcel available for its highest and best use, industrial. Thus it went to the value of the entire parcel and to the parcel taken. By way of rebuttal defendants sought and offered to show that Mr. Withers was mistaken because an adequate drainage channel could be built at less cost and requiring smaller acreage: ‘Your Honor, we offer to show that this property would not necessitate a channel of this size and that a channel could be designed which would be engineeringly proper which would consume approximately nine-tenths less acreage, which means to Mr. Kline approximately $18,000, and that is on the basis of Mr. Rix’ own theory of valuation.' This subject had been first opened after defendants had rested their case. Following much discussion and numerous attempts at proof, the proffered evidence was excluded. The case had wended its dreary way so long that the weary trial judge had previously remarked: ‘Let's proceed. You have both over-tried this case with the result that we are going to be here for another week. I am supposed to go to the hospital. I have been very patient here but I will have to declare a mistrial unless you are through with this case by Friday.’ Appellants' objective was proper rebuttal and it was error to exclude it, but we cannot say ‘that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, 254.)

The jury's finding of a value of $12,900 for the taking of a 2.62 acre parcel is at the rate of approximately $4,900 per acre. Plaintiff's only expert fixed a value of $2,050 for the 2.62 acres or approximately $782 per acre, though he gave a value of $20,000 per acre for the balance of the larger parcel. Defendants' witnesses valued said parcel 30 as follows: Bell, $47,160 (or $18,000 per acre); Kline, $52,400 ($20,000 per acre); Young, $47,000 ($18,200 per acre). It is quite evident that the jurors were not too much impressed by the defense showing or by that of plaintiff so far as values were concerned. We do not think it probable that defendants would have had a more favorable result if the error had not occurred.

Plaintiff's witnesses Wilt and Keith had testified to flooding of the subject property at intervals, the lower portion of the land being flooded by water backing up from a neighboring lagon; Wilt also said there was a watercourse across this property and in 1956 about 1/4 to 1/3 of the 28 acre parcel (left on the southwest portion of the property after construction of the flood control channel) had been flooded. Keith said he had seen 22.5 per cent of the entire parcel of 38.85 acres inundated. Then Mr. Withers described the flood problem and the drainage channel necessary to devote the property to its best use, locating it parallel and over an existing sewer line, with dimensions such as we have above detailed. Nothing was said by Withers about the velocity of the 450 cubic feet of water per second which the necessary ditch or channel should carry. Plaintiff's counsel saw to it that the battle over rebuttal testimony tendered through defendants' expert witness Pfeiler degenerated into a discussion of velocity of water to be carried in the suggested channel, a highly technical and puzzling line of evidence. At long length it came to a close and we consider it probable that this entire discussion meant little to twelve laymen, who manifestly considered that defendants and their witnesses were asking almost twice as much as their property was worth. We do not think that the refinements which counsel sought to make with respect to the channel that should have been built had flood control drainage not intervened would have affected the verdict to any substantial extent.

IV. Appellants complain of the giving of plaintiff's instruction No. 11, reading as follows: ‘In arriving at the market value of Parcel No. 30 as a part of defendant's larger 38.85 acre parcel it is not proper to attribute an average per square foot value to the larger parcel and then assign that unit square foot value to Parcel No. 30, unless you first find that each and every square foot of the larger parcel has the same value as each and every square foot of parcel No. 30. If you find that the land to be condemned is different in quality than the rest of the larger parcel and is worth more or less per square foot than such larger parcel, you must then assign to Parcel No. 30 that different value.’ There seems to be no error in this. It is plain that the property needed artificial drainage in order to devote it to its highest and best use, and there is no real dispute about the fact that a ditch or a channel located in parcel 30 would be best because of the configuration of the ground and artificial conditions upon or in neighboring lands. The low part of land that needs drainage is normally of the least value. This instruction told the jury that it could not arbitrarily apply to this low area an average square foot value of the whole parcel. The rule as stated in the instruction finds sanction in People v. Loop, 127 Cal.App.2d 786, 796, 274 P.2d 885; People ex rel. Dept. of Public Works v. Lindskog, 195 A.C.A. 637, 645, 16 Cal.Rptr. 58.

Appellants' counsel rely upon the assertion ‘that persons buying and selling property in the market in the area made no distinction in the transactions between portions of the properties which were in or out of a water course and paid the same price per acre for all portions of the property within the boundaries not committed to an express legal easement such as for adjacent streets, powerlines, etc.’ To support it they point to two or three instances in which this had occurred, but that is not enough to prove a custom or to render inapplicable the authorities just cited. Indeed, counsel for appellants concede that the instruction in question ‘is based upon a sound principle of law.’

V. Refusal of defendants' proposed instruction P3 was not error. The matter was adequately covered by instructions 16 and Q which were given by the court. No. 16 says: ‘If you find from the evidence that the construction by the plaintiff of a flood control channel will protect defendant's remaining land from water overflow, such construction constitutes special benefit to that land. The amount of special benefits are to be determined by you upon the basis of the evidence and separately stated by you in your verdict, the value of such benefit will only be deducted from the amount of severance damage, if any, and will not be deducted from the value of the property being taken.’ There is no claim of conflict in the evidence upon the question of whether the flood control channel does protect defendants' land from flooding; hence the question of existence of special benefit was one of law for the court's determination, although the amount thereof was for the jury. (Cf. People ex rel. Dept. of Public Works v. Stevenson & Co., 190 Cal.App.2d 103, 108, 11 Cal.Rptr. 675; People v. Ricciardi, 23 Cal.2d 390, 402–404, 144 P.2d 799.) There was no error in telling the jury in this case that there was a special benefit accruing through the draining of the larger parcel. Beveridge v. Lewis, 137 Cal. 619, 626, 67 P. 1040, 70 P. 1083, 1086, 59 L.R.A. 581, contains this passage: ‘Special benefits, as I have said, are such as are peculiar to the property which it is alleged has been damaged, such as are reasonably certain to result from the construction of the work. Illustrations are afforded where a marsh will be drained or levee built which will protect the land from floods.’ Stocker v. Nemaha Valley Drainage Dist. No. 2, 99 Neb. 38, 154 N.W. 862, 863: ‘The court was right in refusing to charge that ‘general benefits' are those which are enjoyed not alone by the plaintiff but by the property owners along the line of the ditch. Proprietors along the line of the ditch have received substantial benefit by its excavation draining the land of surplus water, preventing overflows, and permitting crops to be grown where it was impracticable to do so before. These are ‘special benefits.”

VI. Refusal of defendants' proposed instruction AA was not error. It reads as follows: ‘Flood protection works are required to follow the natural drainage system of the country, and if water is diverted out of its natural channel and discharged into a different channel, the burden placed upon the land over which the new channel is located is a greater burden than that to which it may have been originally subject.

‘You are instructed that the 38.85 acres owned by Mr. Kline and others was not obligated prior to the construction of the flood control channel to receive and convey the direct flow of the Whittier Creek.’

The first paragraph was inappropriate for the land taken was a parcel upon which the flood control channel was constructed. The question of increased burden was entirely aside from the issue of defendants' damages, which were to be fixed upon the hypothesis of the most injurious user by the condemnor. (East Bay Mun. Util. Dist. v. Lodi, 120 Cal.App. 740, 762, 8 P.2d 532; People ex rel. Dept. P. W. v. Schultz Co., 123 Cal.App.2d 925, 935, 268 P.2d 117.) The second paragraph was likewise inappropriate. There is no question of increased burden in an eminent domain case when a parcel is taken in fee, as here.

Assuming arguendo the propriety of the proposed instruction, it appears that the subject was covered by an instruction found at reporter's transcript page 1008, which respondent says was requested by appellants as their instruction Z. The record does not show who requested this instruction and it therefore is presumed that defendants did so, for the burden rested upon them as appellants to show the contrary if such be the fact. (Fields v. City of Oakland, 137 Cal.App.2d 602, 607, 291 P.2d 145; Lynch v. Birdwell, 44 Cal.2d 839, 846–847, 285 P.2d 919.)

VII. Finally, appellants' counsel argue that the giving of plaintiff's instruction 16 to the effect that there was a special benefit here (discussed in V above), was error because flood control projects are financed by special assessment and collection of a tax to cover the same; that allowance of a special benefit here would result in double payment for same by the condemnees. Reliance is placed upon Oro Loma Sanitary Dist. v. Valley, 86 Cal.App.2d 875, (per syllabus, 4, 195 P.2d 913) which holds: ‘Special benefits accruing to land from an improvement for which part of the land has been taken by eminent domain may not be set off against severance damages for the land taken where the remaining land has been assessed for the improvement pursuant to the Municipal Improvement Act of 1913, since the act requires that such assessment be proportional to the total benefits received from the improvement by the remaining land, and the land being thus charged would be doubly charged by allowing the set-off of special benefits against the severance damages.’ Respondent points to the case of Los Angeles Railway Corp. v. Flood Control Dist., 78 Cal.App. 173, 180, 183, 248 P. 532, which shows that general benefits from flood control work are paid from general taxation and not through special assessments. Respondent's counsel further say, and appellants in their reply brief do not deny, that ‘Respondent's flood control project involved herein was one of 140 financed by the 1952 Bond Issue and benefitted 83 cities and communities. This project was financed by a District-wide assessment which differs greatly from a levy pursuant to the Municipal Improvement Act of 1913. As appellants state, the latter Act ‘requires that such assessment be proportional to the total benefits received from the improvement by the remaining land.’ Because no such requirement exists in the case of a Flood Control assessment, appellants' reliance on Oro Loma Sanit. Dist. v. Valley, (1948) 86 Cal.App.2d 875, 195 P.2d 913, a 1913 Act case, is not justified. The court in the Oro Loma case said the 1913 Act assessment was ‘based upon all the benefits to be received by the land from the proposed improvement, and not only upon the general benefits resulting therefrom.’ (86 Cal.App.2d 875 at 882, 195 P.2d 913.)' This adequately disposes of the matter.

Moreover, defendants' counsel stated that he made no objection to Mr. Rix testifying to special benefit in an amount equal to or less than the $5,650 which he had fixed for severance damage. And counsel for defendants requested instructions on that subject. By so doing they precluded complaint on appeal with respect to the giving of the instruction 16 now under consideration. Yolo Water & Power Co. v. Hudson, 182 Cal. 48, 51, 186 P. 772, 774: ‘A party cannot complain of an instruction given at his own request, or of an error in an instruction given at the instance of his adversary when he requests a substantially similar one. 14 R.C.L. 815, and cases cited.’ See, also, Loughan v. Harger-Haldeman, 184 Cal.App.2d 495, 505, 7 Cal.Rptr. 581; People v. Miller, 185 Cal.App.2d 59, 81–82, 8 Cal.Rptr. 91.

The judgment is affirmed and the attempted appeal from findings and conclusions is dismissed.

FOOTNOTES

1.  People, By and Through Dept. of Public Works v. Thompson, 43 Cal.2d 13, 27–28, 271 P.2d 507, 515 does not do so. It merely distinguishes the McCullough case upon the facts, saying: ‘Pursuant to the findings of the jury the amounts awarded defendants were greater than those to which the People's two witnesses testified and less than those to which the defendants' two witnesses testified. This award has ample support; manifestly the jury were not bound to accept the testimony of any one of the four witnesses. The situation is not like that in People ex rel. Department of Public Works v. McCullough (1950) 100 Cal.App.2d 101, 105, 223 P.2d 37, relied upon by the People, where the jury rejected the evidence of all the experts, both those who testified for plaintiff and those who testified for defendant, and awarded an amount higher than the valuation to which any witness had testified.’

2.  Code Civ.Proc. § 1845.5: ‘In an eminent domain proceeding a witness, otherwise qualified, may testify with respect to the value of the real property including the improvements situated thereon or the value of any interest in real property to be taken, and may testify on direct examination as to his knowledge of the amount paid for comparable property or property interests. In rendering his opinion as to highest and best use and market value of the property sought to be condemned the witness shall be permitted to consider and give evidence as to the nature and value of the improvements and the character of the existing uses being made of the properties in the general vicinity of the property sought to be condemned.’

3.  ‘You are instructed that a special benefit is only one that is special and peculiar to the remaining property of the defendant and is not a benefit that is received generally by property owners in the area. A special benefit is one that is reasonably certain to result from the construction of the improvement in the particular manner proposed. A mere possibility is not sufficient. Benefits resulting from other sources, such as the develoment of new business activity in the area, prospective growth in population, or the trend in the market value of land in the area, if there be any, are not special benefits. Any increase in value from such sources is to be considered in the value of the land taken, but is not to be included in your determination of special benefits. Your verdict as to fair market value may be based in part upon factors influencing the value of all properties in the vicinity; however, your verdict with respect to special benefits may not be founded upon such considerations, but must be restricted to the precise limits of the remaining property of the defendant. A special benefit is one in which the property owner will acquire some proprietary right or interest, which, if it were taken away, destroyed, or altered by the plaintiffs in future years, would entitle the defendant to further compensation for its loss.’

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.