LONG BEACH CITY HIGH SCHOOL DIST OF LOS ANGELES COUNTY v. STEWART (1946)

This appeal is from an interlocutory judgment entered in an action to condemn appellants' property for use as a junior high school. The issues as to public necessity and suitability of the property for the purposes stated, were heard by the court without a jury and determined adversely to appellants' contentions. Thereafter, a jury awarded the owner, Irwin Stewart, hereinafter referred to as appellant, damages in the sum of $20,000 for the taking of Parcel No. 1. This parcel, with which the present appeal is concerned, is located on the southwest corner of Santa Fe Avenue and Columbia Street in Long Beach. It was acquired by appellant in 1905 since which time the property has been used as a home and for farming operations. In 1906 the appellant built an eight room frame house, together with a barn, storeroom and shed. A garage and a shop now used by appellant's son as a machine shop, were later constructed. The subject property was zoned in 1941 by the City of Long Beach as a residential district for single family dwellings; it is characterized by appellant as industrial property previous to that date although it was originally farm land. Appellant's parcel is unimproved as to gas, sewers and streets. The land abuts the Union Pacific railroad running to San Pedro, and a high power line of the Southern California Edison Company runs parallel to its west border, the right of way therefor having been sold by appellant to such company.

In respect to value there is the appellant's testimony that the parcel was worth $5000 per acre, or a total sum of about $80,000 for the sixteen acres approximately, involved herein. Appellant's expert witness, eminently qualified, placed the fair market value at $17,500 as of July 1, 1944. The respondent's appraiser testified that the fair market value for subdivision purposes was $13,500. The appellant's expert, on cross examination stated that other properties in the district had been sold within the past three years at a price of about $600–700 per acre, but that such properties were not as favorably located as appellant's real estate and that prevailing conditions were different.

It is appellant's contention that: ‘That instructions to the jury were erroneous, confusing and misleading as to the elements to be considered in fixing present reasonable market value and, in effect, limited consideration of the jury to the present available use of the property and eliminated adaptability to higher uses and the effect thereof on value.’ In this connection Instruction No. 21 is particularly referred to and characterized as ‘highly confusing and prejudicial.’ It is admitted in appellant's brief that this instruction correctly told the jury, ‘It is not proper to take into consideration speculative or conjectural uses or enterprises or the profits which may result therefrom,’ and ‘You are not to consider uses which are remote and speculative only in their nature’. Appellant claims however, that ‘the court destroys the entire effect of such instruction by further stating, ‘and you should not consider possible future uses under altered circumstances which may or may not arise.’'

A somewhat similar situation is alleged to exist as to Instruction No. 26. As modified by the court, this instruction stated: ‘You should estimate the compensation to the owner by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. You should give consideration to all pertinent circumstances including the location and surroundings of and other factors affecting the use or uses to which it could reasonably be put.’ (Italics added.) This instruction was given as requested by the appellant except that the trial court struck out the words ‘highest and best’ preceding the word ‘use’ in the last italicized portion of the instruction, substituting therefor the words ‘use or uses.’

In like manner complaint is made in respect to Instruction No. 28 where the court again deleted from appellant's request, the words ‘the highest and best use,’ and told the jury: ‘You should consider all of the uses to which the property is suitable and available, having regard not only to the existing business or wants of the community, but also those that may reasonably be expected in the immediate future.’ (Italics added.) It is insisted that the insertion of the word ‘available,’ which was not in appellant's request, ‘limits the entire instruction to the fact that under the evidence the property was available only for residential purposes,’ and removed from the jury consideration of adaptability of the property to a ‘higher and better use.’

The objections to instructions may be considered together since they are fundamentally the same, namely, that the jury was prevented from giving proper consideration to possible industrial uses of property which was zoned for residential occupancy at the time of the condemnation. To the respondent's assertion that, considering the instructions as a whole, the jury was properly instructed and not misled, appellant replies that ‘the erroneous, misleading and confusing’ nature of the particular instructions ‘becomes all the more apparent’ when the charge is viewed as a whole. With the appellant's contentions it is impossible to agree. Instructions 26 and 28, requested by appellant and given in slightly modified form, clearly inform the jury that consideration may be given not only to the present available uses permitted by the zoning regulations but also to such uses ‘as may be reasonably expected in the immediate future,’ and that the jury ‘should consider all of the uses to which the property is suitable and available.’ While individual instructions might conceivably have been improved in respect to terminology, no error is apparent when the charge is viewed as an entirety.

In Sacramento, Southern R. Co. v. Heilbron, 156 Cal. 408, 412, 104 P. 979, it is stated that in emment domain proceedings, ‘damages must be measured by the market value of the land at the time it is taken, that the test is not the value for a special purpose, but the fair market value of the land in view of all the purposes to which it is naturally adapted.’ In that case, as in this, there was criticism of certain instructions concerning value, but in view of the whole charge, it was held that the jury could not have been misled. Note may also be taken of Central Pac. R. Co. of California v. Pearson, 35 Cal. 247, 262, holding that testimony in relation to the value of wharf privileges was improperly received ‘for the obvious reason that the party claiming the compensation had no wharf franchise. The mere fact that the party might at some future time obtain * * * a wharf franchise * * * is altogether too remote and speculative.’ City of Beverly Hills v. Anger, 110 Cal.App. 626, 294 P. 476, 478, upon which appellant relies, contains nothing which is inconsistent with the cases hereinbefore cited, and is not authority for appellant's present contentions. In the City of Beverly Hills case the court held that although zoning ordinances and restrictions would have an influence upon market value, ‘It was, however, singly and only, the market value of the land as of the stated time that the jury was expected to ascertain and declare, in accordance with the evidence.’ It was also there held that there could be no presumption that the property would be rezoned for ‘income producing purposes.’

A further contention is that the trial court erred ‘in limiting the testimony of qualified expert witnesses as to the present market value * * * to a consideration of the use to which the property was then available under existing zoning restriction,’ without consideration of other uses to which the property was ‘adaptable.’ The appellant's expert had testified that the highest and best use ‘subject to existing zoning conditions * * * is that of a potential single residential subdivision,’ but that the highest and best use for which the property was ‘naturally adapted’ was ‘industrial purposes'; that the value was ‘considerably higher’ for industrial than for residential use—‘at least double the amount.’ This witness further said, ‘I haven't given it sufficient study to determine its fair value for industrial purposes.’ After this testimony had been received the trial court sustained an objection ‘to any statement of value * * * considered from the standpoint of an industrial site,’ but it does not appear that the testimony in question was stricken. Much that has already been said in reference to instructions concerning value, is equally applicable to appellant's present objection, particularly the rule prohibiting consideration of remote and speculative value. Whatever other reasons may have been present, the trial court was undoubtedly correct in holding that the appellant's expert should not express an opinion as to value for industrial purposes in view of the witness' own statement, ‘I haven't given it sufficient study’ to determine such value. The various elements bearing upon the question of value were gone into in considerable detail on both direct and cross-examination and it does not appear that the appellant was deprived of any substantial right. With a verdict of considerably more than the estimate of appellant's expert, arrived at after the jury had viewed the property, it seems obvious that no prejudice resulted. And, since the evidence in question was not stricken, appellant apparently had the advantage of the very evidence which is now demanded.

Finally, the appellant's brief presents the point that ‘The Court erred in refusing to permit the owner, who testified as to his opinion of the value, to state the basis and reason for his opinion, as provided in Section 1872, C.C.P.’ The appellant had placed the value of the property at $5000 an acre, and the trial court then sustained an objection to the question on direct examination,—‘Now what do you base this valuation upon?’ Section 1872 of the Code of Civil Procedure, relied upon by appellant in this connection, provides that ‘Whenever an expert witness gives his opinion, he may, upon direct examination, be asked to state the reason for such opinion.’ (Italics added.) The case of Spring Valley Water Works v. Drinkhouse, 92 Cal. 528, 534, 28 P. 681, cited to sustain this position, merely held that an owner ‘was competent to give an opinion as to the value of her own land, within the general rules on that subject. She had a particular knowledge of it, being a resident upon it, and had owned it for over twenty years.’ The owner is not there designated as an ‘expert,’ and appellant can derive no benefit from the provisions of Code Civ. Proc. Section 1872 which by its terms, relate only to ‘expert’ witnesses. Quote obviously, not all opinion evidence is of an expert nature, and, says 10 Cal. Jur. page 1023, ‘It is a recognized rule that the owner of property, whether generally familiar with such values or not, is competent to estimate its worth * * * And, it has been held, it is proper to let the owners of destroyed personalty testify regarding its value even though they are not experts.’ Moreover, it may be noted that, at the trial, appellant's counsel apparently did not consider the owner as an expert witness, for, upon objection being made, Mr. McConnell, acting as appellant's attorney, stated: ‘I am asking his opinion as owner. * * * He has a right to give that. He does not have to be an expert.’ (Italics added.) And in any event, the record discloses that the appellant testified in some detail as to history, surrounding conditions, and almost every possible fact upon which his opinion must have been based; hence no prejudice could have resulted.

For the foregoing reasons the judgment is affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.