Summary
In Schmailzl v. State, 176 Neb. 617, 126 N.W.2d 821 (1964), the issue was similar to the one presented here. The court said: "The State assigns as error the introduction of certain family photographs, contending that their purpose was to arouse the sympathy of the jury....
Summary of this case from Maricle v. SpiegelOpinion
No. 35583.
Filed March 13, 1964.
1. Eminent Domain. The market value of land taken by condemnation proceedings is computable as of the time of the condemnation, which is deemed to be the date the petition for condemnation is filed. 2. ___. The actual appraisal of the property must be made near enough in point of time to furnish a test of the market value as of the date in question and is a matter within the sound discretion of the trial court. 3. Eminent Domain: Evidence. Whether or not evidence of a comparable sale is near enough in point of time to furnish a test of the present value is a matter within the sound discretion of the trial court. 4. ___: ___. An owner who has resided on and improved land, and testifies he knows its worth, is a competent witness on the question of value. 5. ___: ___. An owner, by virtue of the ownership relation, is qualified to give his estimate of the value of such property. 6. ___: ___. In condemnation actions, the weight and credibility of testimony of either lay or expert witnesses regarding the value of land taken is for the jury. 7. ___: ___. The matter of land values is not generally considered as a subject exclusively for experts, and one who has a reasonable familiarity with the property in question is usually competent to testify. 8. Trial: Evidence. Where on a trial an inspection of the premises in question is proper, but impracticable or impossible, a photographic view thereof is admissible. 9. ___: ___. The possibility that photographs might have a tendency to create sympathy in favor of one party should not render them inadmissible as proof of an issue on trial.
Appeal from the district court for Lancaster County: JOHN L. POLK, Judge. Affirmed.
Clarence A. H. Meyer, Attorney General, Harold S. Salter, Asa A. Christensen, Lyle C. Winkle, Richard L. Dunning, and William J. Orester, for appellant.
Ginsburg, Rosenberg Ginsburg and Norman Krivosha, for appellees.
Heard before WHITE, C.J., CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is a condemnation action involving the entire taking of Lot 11, Block 5, North Lincoln Addition to the City of Lincoln, commonly described as 730 W Street, and all improvements thereon. The action was brought by the State of Nebraska, hereinafter referred to as State, to acquire the property for highway purposes involving the construction of a controlled-access highway to Interstate Highway No. 80. By the time of the trial the property had been incorporated into the interstate highway system of the state.
The owners of the property were Kenneth M. Schmailzl and Patricia M. Schmailzl, husband and wife, who will hereinafter be referred to as condemnees. The improvements on the property consisted of a seven-room modern house and a garage. The lot was enclosed by a steel-wire and picket fence. W Street at this point was unpaved, but the street had been graveled by the condemnees. Eighth Street, which was the street to the east of the property, was paved.
The petition for condemnation was filed in the county court on March 6, 1962. The appraisers appointed by the county judge assessed the damages at $4,250. Condemnees appealed to the district court. The district court jury returned a verdict for $6,000 and the State has perfected this appeal from the judgment entered thereon.
The State alleges eight assignments of error which we condense to four, as follows: (1) The admission of the testimony of Kenneth King who appraised the property in July 1961; (2) the overruling of the objection of the State to the testimony by one of the owners of the property as to the purchase price and the cost of the materials used in making improvements; (3) the overruling of the objections on the part of the State to the testimony of one of the owners as to value; and (4) the admission in evidence of photographs of portions of the property.
Condemnee's chief witness as to value, other than condemnee Kenneth M. Schmailzl, who for convenience herein will be referred to as owner, was Kenneth King. Kenneth King at the time of the trial and at the time he made his appraisal was the secretary and loan appraiser for the Union Loan and Savings Association of Lincoln, Nebraska. He was a senior member of the Society of Residential Appraisers and had appraised in excess of 3,000 Lincoln residential properties. The State does not challenge his qualifications or that of the owner to give an opinion, but does challenge the competency and the relevancy of those opinions.
The condemnees in July 1961, secured a loan on the property involved herein from the Union Loan and Savings Association. Kenneth King appraised it for loan purposes. During the course of his appraisal, he used a check list or appraisal form which was filled out by an associate who inspected the property with him. The sheet described the nature of the improvements on the property, and was admitted in evidence over the objection of the State. The property had been entirely destroyed by the time of the trial and the exhibit was properly received to describe the nature of the improvements on the premises.
Kenneth King testified that at the time of making the mortgage loan in July 1961, the property had a reasonable market value of $6,000, and the mortgage loan was based on that appraisal. It was his intention to be conservative and to appraise the property slightly under the sales market. He further testified that property values had shown a slight increase subsequent to the time of his loan appraisal. He saw the property after the date of the appraisal, and it was structurally the same on March 6, 1962, although at that time it was occupied by renters rather than the condemnees, who had purchased a new home with the proceeds of the loan. The property was the same except that the housekeeping wasn't as good as it had been. He further testified that in appraising property, he had available a list of all sales in the city and kept himself informed. He knew of no sales in the area that would cause him to change his opinion of the value. It was his personal opinion that the property was worth $6,000. As we read the record, the witness was amply qualified, and his opinion was premised on the market value and condition of the property on March 6, 1962, the day of the taking. The burden was on condemnees to prove the market value as of March 6, 1962. King's testimony meets that test.
The State produced two value witnesses, who placed a market value on the property of $4,000 and $4,100. One checked the property in September 1961, or 2 months after the King appraisal. The other did not see the property until approximately 1 month after the condemnation. It is apparent that the State would apply different criteria to the condemnees' witness than it would to its own. The State's appraisers, to determine their values, relied mainly on the sales of other properties, all but one of which were made in 1959, 1960, or 1961. All were prior to the appraisal made by condemnees' witness. The one which was not made prior was a sale approximately 1 month after the date of the condemnation. We see no need to discuss this evidence, but do observe that differences involved in the size of the lots, the location, and improvements suggest the possibility that the jury could readily have determined that none of the properties used by the State's appraisers were actually comparable sales.
The market value of land taken by condemnation proceedings is computable as of the time of the condemnation, which is deemed to be the date the petition for condemnation is filed. Platte Valley Public Power Irr. Dist. v. Armstrong, 159 Neb. 609, 68 N.W.2d 200. This does not mean the witnesses must have examined the property on that exact day. This would very rarely be the case. Even the appraisers appointed by the county judge in condemnation proceedings appraise the property on a day subsequent to the day for which the value is to be determined. The rule is that the actual appraisal must be made near enough in point of time to furnish a test of the market value as of the date in question, and is a matter within the sound discretion of the trial court. The same rule applies to comparable sales. It will be an extremely rare occasion when the dates correspond. Whether or not evidence of a comparable sale is near enough in point of time to furnish a test of the present value is a matter within the sound discretion of the trial court. See Timmons v. School Dist., 173 Neb. 574, 114 N.W.2d 386. The trial court did not abuse its discretion in overruling the State's objection to the testimony of Kenneth King.
The owner was permitted, over objection, to testify to the purchase price of the property 11 years previous to the condemnation and as to the improvements he had made on it subsequent to the purchase. The State contends this evidence was too remote to have probative value and was an abuse of the trial court's discretion. On the record herein, we cannot say that this was an abuse of discretion. It is true one of the State's witnesses testified conditions had changed, but there is evidence otherwise. The other expert witness called by the State testified that one of the factors considered by an appraiser is the price paid for property, and that he had made inquiry as to the purchase price on this particular property. He further testified that another factor considered by appraisers was the improvements made, and that improvements would have an influence, particularly if they lent some value to the real estate.
Our law is well settled that an owner who has resided on and improved land, and testifies he knows its worth, is a competent witness on the question of value. See Chicago, R. I. P. Ry. Co. v. Buel, 56 Neb. 205, 76 N.W. 571. An owner, by virtue of the ownership relation, is qualified to give his estimate of the value of such property. See Johnson v. City of Lincoln, 174 Neb. 837, 120 N.W.2d 297.
The owner testified that he had an opinion as to the fair and reasonable market value of the property as of March 6, 1962, and that value was $6,500. On cross-examination he admitted that he took into consideration in arriving at his opinion what he paid for the property and the cost of the improvements made, exclusive of labor. The factors considered by an owner do not affect his qualifications, but may affect the credibility of his testimony. In condemnation actions, the weight and credibility of testimony of either lay or expert witnesses regarding the value of land taken is for the jury. Connor v. State, 175 Neb. 140, 120 N.W.2d 916.
The effect of the State's contention is to say that an owner will only be permitted to testify as to value when he has in mind all of the elements upon which an opinion of value may properly be predicated. This would require him to have the qualifications of an expert witness to testify as to the value of his own property. We do not understand the law to require that the owner meet this strict test. The matter of values is not generally considered as a subject exclusively for experts, and one who has a reasonable familiarity with the property in question is usually competent to testify. See Wahlgren v. Loup River Public Power Dist., 139 Neb. 489, 297 N.W. 833. This, as suggested heretofore, is a matter for the sound discretion of the trial court.
No complaint is made that the jury was not properly instructed on the measure of damages. It was specifically told that the measure of compensation would be the fair and reasonable value of the property on the date of its taking, March 6, 1962. It was also told that fair and reasonable market value meant its actual value, "that is, the fair value of the property if offered for sale upon the open market as between one who is ready and willing to sell but is not compelled to sell, and one who is ready, able and willing to buy but is not required to buy."
The State assigns as error the introduction of certain family photographs, contending that their purpose was to arouse the sympathy of the jury. The photographs do show various members of the family of the owners, who had seven children, but each of them also shows some portion of the exterior or interior of the premises as it existed at the time of the condemnation. At the time of the trial, the improvements had been removed and the area incorporated into the highway system. It was, therefore, impossible to have the jury personally inspect the premises. The witnesses for the State tended to depreciate the effect of the improvements made on the value of the property and to disparage the suitability of the property for residential purposes. One of the witnesses testified, "the maintenance was below typical." The State also introduced several photographs of claimed comparable sales without establishing similarity of situations. While the questioned photographs differ from those produced by the State in that they also picture members of the family of the owners, the purpose of their production is the same. The photographs show a livable home with a well-decorated interior suitable for a family residence. We said in Omaha Southern Ry. Co. v. Beeson, 36 Neb. 361, 54 N.W. 557: "Where on a trial an inspection of the premises in question is proper, but impracticable or impossible, a photographic view thereof is admissible."
The photographs offered, while taken for family purposes, did have probative value. Any notations on the back of the photographs, upon proper request, could have been adequately concealed from the jury. The information embraced in the only notation of which complaint is made was already in evidence, and could not be considered prejudicial error. The trial court did not abuse its discretion in admitting the photographs. They are within the ambit of the rule announced in Anderson v. Evans, 164 Neb. 599, 83 N.W.2d 59: "The possibility that the photographs might have a tendency to create sympathy in favor of one party should not render them inadmissible as proof of an issue on the trial."
For the reasons given in this opinion, the judgment of the trial court is affirmed.
AFFIRMED.