[No. 33966. Department Two. Supreme Court May 16, 1957.]
PACIFIC NORTHWEST PIPELINE CORPORATION, Appellant, v.
MARK W. MYERS et al., Respondents.«1»
[1] APPEAL AND ERROR - REVIEW - HARMLESS ERROR - ADMISSION OF EVIDENCE - ERROR CURED BY INSTRUCTION. In a proceeding to condemn an easement for a gas pipe line, it was not prejudicial error to admit testimony regarding depreciation of the land partly based on fear of gas, where the jury was instructed to disregard all evidence concerning the fear of gas.
[2] TRIAL - RECEPTION OF EVIDENCE - OBJECTIONS - SUFFICIENCY. It was not error to refuse to strike a witness' testimony where most of it was admissible and the objectionable portion was not specified; since when a portion of the evidence offered is admissible, objection must be made to that portion which is inadmissible or the objection is of no avail.
[3] EVIDENCE - OPINION EVIDENCE - COMPETENCY OF EXPERTS - VALUE. Whether or not a witness will be permitted to render an opinion as to value is within the sound discretion of the trial court, and unless that discretion has been abused, the supreme court will not disturb the ruling admitting such testimony.
[4] SAME. Witnesses who are not strictly experts, but who have some knowledge of value, may testify; and the fact that their knowledge
«1» Reported in 311 P. (2d) 655.
May 1957] PACIFIC ETC. CORP. v. MYERS. 289
is slight goes to the weight of their testimony rather than to its competency.
[5] SAME. A sufficient qualification to testify regarding land values is usually declared to exist where the witness is a resident, land owner, or farmer in the neighborhood.
[6] EMINENT DOMAIN - PROCEEDINGS TO TAKE PROPERTY - EVIDENCE - ADMISSIBILITY. In a condemnation proceeding, held that it was not reversible error to permit a witness to testify regarding the value of the land to be condemned; since, while his knowledge was slight and his testimony entitled to little weight, his evidence was admissible for whatever it was worth.
[7] SAME - INSTRUCTIONS - METHOD OF DETERMINING DAMAGES. In a proceeding to condemn an easement for a gas pipe line, it was prejudicial error, necessitating a new trial, for the trial court to instruct the jury that the measure of compensation for the legal rights taken was the difference in market value before and after the right of way was granted, and that they should take into consideration certain distinct items of damage in addition to the legal rights taken; since all of the testimony pertained to the listed items, and there was no testimony regarding the value of the legal rights, apart from the depreciation brought about by these factors.
[8] SAME - COMPENSATION - MEASURE AND AMOUNT - FACTORS CONSIDERED. In such a proceeding, it was proper to instruct the jury regarding the expense of keeping water off the easement and regarding damage to crops and land due to the necessity of keeping water off the easement: since putting water on the easement would constitute an interference with it and there would be some expense in avoiding this interference, which is a factor to be considered in determining the loss.
[9] SAME - PROCEEDINGS TO TAKE PROPERTY - INSTRUCTIONS. In such an action, it was error for the trial court to refuse to instruct the jury that it must consider that the pipe line would be installed in a proper and lawful manner and that it could not be assumed that there would be negligent construction.
Appeals from judgments of the superior court for Yakima county, Nos. 40658, 40659, Barnett, J., entered March 22, 1956, upon the verdicts of a jury awarding damages in consolidated condemnation proceedings. Reversed.
Halverson & Applegate and Alan A. McDonald, for appellant.
Hawkins & Loy, for respondents.
ROSELLINI, J. -
In these two condemnation actions, the appellant obtained an adjudication of public use covering an
[6] See 65 A. L. R. 455; 20 Am. Jur. 754.
290 PACIFIC ETC. CORP. v. MYERS. [50 Wn. (2d)
easement which it seeks to obtain across four tracts of land belonging to Mark W. Myers and wife, in Yakima county, Washington, the easement to be used for the installation and maintenance of a ten-inch gas pipe line. A trial was ordered to fix the amount of just compensation for the right of way, and the jury returned verdicts for the respondents in the total amount of $6,600.
On the question of damages, the appellant called three witnesses, who were real estate men from Yakima. One of these testified that the depreciation in market value of the property in question, which would result from the granting of the easement, was $2,277. Another testified that the depreciation would be $2,560, and the third set the amount at $2,574.
The respondents called four witnesses to testify on this question. They were Mark W. Myers, the owner, who asserted that his property would be depreciated in value in the total amount of $9,900; Ernest Myers, a farmer, not related to the respondents, who testified to a depreciation of from five to seven per cent, attributable to the presence of the pipe line in the ground, plus other damages totaling $8,782; Henry Alexander, a farmer, who testified to damages of from $9,300 to $9,850; and Walter Dopps, who had been a real state salesman in Sunnyside a little over two years and who testified to damages of $8,194.75.
The appellant first complains that it was prejudiced by the admission of the testimony of Ernest Myers, for two reasons: first, because he based a part of his depreciation in value upon fear of gas, when no foundation for such fear had been established; and second, because, instead of using the proper measure of damages, he merely testified to the various items which would affect the difference between the market value of the land before the easement was granted and the market value immediately afterward, and totaled the amounts.
[1] The jury was instructed to disregard all evidence concerning fear of gas, and we see no merit to the appellant's contention that it was prejudiced by the testimony on this matter.
May 1957] PACIFIC ETC. CORP. v. MYERS. 291
Regarding the witness' testimony concerning the specific items of damage which affect the depreciation in market value, the appellant admits that such evidence is admissible as bearing upon and tending to show the accuracy, or inaccuracy, of the comparative values as estimated by other evidence responsive directly to the before and after rule. Baker v. Mississippi State Highway Comm., 204 Miss. 166, 37 So. (2d) 169.
[2] The defect in the testimony of this witness is that, standing alone, it would not support a verdict; but taken in conjunction with the testimony of other witnesses, who testified to a depreciation in value equal to or greater than the total of the damages testified to by this witness, it amounted to no more than a rebuttal of the evidence offered by the appellant and a substantiation of that offered by the respondent. The appellant moved to strike the witness' testimony but did not specify the objectionable portion of it; and, since most of the testimony was admissible, the court did not err in refusing to strike it in its entirety. Where a portion of the evidence offered is admissible, objection must be made to that portion which is inadmissible or the objection is of no avail. Keen v. O'Rourke, 48 Wn. (2d) 1, 290 P. (2d) 976.
The appellant next objects to the admission of testimony by the witness Henry Alexander, who it alleges, was not properly qualified to testify on the question of value. The appellant points out that although the witness had farmed in the vicinity for over twenty years, he had never bought nor sold any land other than the farm he owned; that he had never been upon the Myers' farm but had merely observed it from the road; and that he admitted he was familiar with land values in the area only in a general way. The respondent answers that the witness owns a farm four miles from the Myers' farm, has been a member of the Sunnyside Valley irrigation district since 1946, and has appraised land in this area as a representative of the district.
[3, 4] Whether or not a witness will be permitted to render an opinion as to value is within the sound discretion of the trial court, and unless that discretion has been abused,
292 PACIFIC ETC. CORP. v. MYERS. [50 Wn. (2d)
this court will not disturb the ruling in admitting such testimony. State ex rel. Oregon-Washington Water Service Co. v. Hoquiam, 155 Wash. 678, 286 Pac. 286, 287 Pac. 670; Traver v. Spokane Street R. Co., 25 Wash. 225, 65 Pac. 284. Witnesses who are not strictly experts but who have some knowledge of value may testify. The fact that the knowledge is slight goes to the weight of their testimony rather than to its competency. State ex rel. Oregon-Washington Water Service Co. v. Hoquiam, supra.
[5] Speaking of the knowledge necessary to qualify a witness to testify regarding land values, Professor Wigmore says:
"A sufficient qualification is usually declared to exist where the witness is a resident, land-owner, or farmer, in the neighborhood." 3 Wigmore on Evidence (3d ed.) 44, § 714.
The reason for this, the writer says, is that such a person has both the interest and the opportunity to make himself familiar with land values around him.
[6] In view of these rules and principles, which the courts have generally applied, we do not think that permitting the witness to testify constituted reversible error. While his knowledge was slight and his testimony probably entitled to little weight, his evidence was admissible for whatever it was worth.
The appellant assigns error to the giving of three instructions. Two of these correctly stated the applicable law, but the third was worded in such a way that it enabled the jury to impose a double measure of damages; and in view of the large verdicts (more than three times the value of the land included in the easement), we believe that the appellant is entitled to a new trial.
The appellant has no quarrel with the measure of compensation enunciated by the court in instruction No. 19, the first part of which reads:
"Your verdict should fairly and adequately compensate respondents for the legal rights taken from them. The proper measure of this compensation is the difference between the fair market value of each entire tract through
May 1957] PACIFIC ETC. CORP. v. MYERS. 293
which said right-of-way actually passes, without said easement and right-of-way, and the fair market value of each of said tracts through which said fifty foot right-of-way passes after the taking of said easement, but before any work is done on the easement or in the easement by the petitioner, Pacific Northwest Pipeline Corporation or its agents."
It maintains, however, and we are inclined to agree, that the remainder of the instruction permitted the jury to compensate the respondents for the depreciation in market value of their land and to add to that depreciation compensation for all of the items which are considered in determining the amount of depreciation. Having told the jury that the measure of compensation for the legal rights taken from the respondents was the difference in market value before and after the right of way was granted, the court continued:
"In arriving at this difference, you should take into consideration the actual legal rights taken and also the following items: (a) depreciation, if any, due to the existence of the pipeline itself; (b) loss of crops, if any, this year and future years; (c) loss, if any, of use of pasture due to the use by the corporation of said fifty foot right-of-way and temporary easements this year and in future years; (d) reasonable expense, if any, to respondents in keeping cattle from said fifty foot right-of-way now and in the future and during periods necessarily required in order to re-establish the crops and pasture on said fifty foot right-of-way; (e) reasonable expense, if any, to respondents in building and maintaining necessary works to insure proper irrigation of the land during such times as said corporation shall have the right to occupy said fifty foot strip under the terms of its easement; (f) reasonable expense, if any, to respondents in keeping water from said fifty foot strip during periods of construction, replacement and repair; (g) reasonable expense, if any, to respondents, in leveling and re-leveling said fifty foot strip and hauling of additional soil to fill settlements; (h) reasonable extra expense, if any, to respondents caused by said fifty foot right-of-way due to the interference thereof with the operation of said dairy herd farm unit and said cattle feeding farm unit; (i) reasonable extra expense, if any, to the respondents in puddling the trench in which said pipeline will be laid in preventing water from seeping along said pipeline, and preventing consequent damage; (j) extra reasonable expense, if any, to the
294 PACIFIC ETC. CORP. v. MYERS. [50 Wn. (2d)
respondents of regrading, replanting and caring for, and seeding said fifty foot right-of-way; (k) reasonable damages, if any, to crops and land due to the necessity of keeping water off during periods of occupancy of said right-of-way by said corporation under the terms of its easement; (l) such other reasonable expenses, if any, supported by the evidence, reasonably necessary to restore said premises to normal productivity." (Italics ours.)
[7] While the listed items may have a bearing on the depreciation in market value which would result from the granting of the easement, they could not be considered as distinct items of damages. (Seattle & Montana R. Co. v. Murphine, 4 Wash. 448, 30 Pac. 720.) It was not proper for the jury to consider them in addition to the legal rights taken, the value of which, the jury had previously been told, was this same difference in market value. All of the testimony pertained to the listed items, and there was no testimony regarding the value of the "legal rights" taken, apart from the depreciation in value brought about by these factors. The giving of the instruction was prejudicial error, and a new trial must be granted.
The appellant also objects to the inclusion of items (f) and (k), pertaining to the necessity of keeping water off the right of way during periods of occupancy, maintaining that there's no language in the terms of the order of public use or the decree of appropriation requiring the respondents to keep water off the right of way. The appellant's engineer testified on cross-examination that the respondents would be expected to refrain from putting water on the fifty-foot right of way during the period of occupancy, and there was considerable testimony regarding the expense which would be involved in the event it became necessary to irrigate while the construction work was going on.
[8] While it is true that the order of public use does not mention the duty of the respondents to refrain from irrigating across the right of way while it is occupied under the terms of the easement, according to the testimony of the appellant's engineer, such irrigation would make it difficult if not impossible to carry on the installation operation.
May 1957] PACIFIC ETC. CORP. v. MYERS. 295
Since this is the case, putting water on the right of way would constitute an interference with the easement, and if the respondents would be put to some expense in avoiding this interference, that is a factor to be considered in determining their loss.
The appellant complains of the court's refusal to give its requested instruction No. 15, which reads as follows:
"You are hereby instructed that in your deliberations regarding market value of the property you must consider that the pipeline will be constructed, maintained and operated in a proper and lawful manner. You are not entitled to assume that there will be negligent construction, operation or maintenance, so as to cause damages in excess of that which would naturally and proximately arise from proper construction, operation and maintenance."
[9] The instruction was proper and pertinent to the issues. The jury may well have drawn the inference, from the testimony of some of the respondents' witnesses, that the work would not be done with due care. The subject matter of the instruction was not covered by other instructions. On retrial of the cause, an instruction to this effect should be given if requested, and if the evidence warrants it.
Since there is to be a new trial, we need not consider the appellant's assertion that the verdicts were so excessive as to indicate that they were the result of passion and prejudice.
The judgment is reversed, and the cause is remanded for a new trial.
HILL, C. J., SCHWELLENBACH, DONWORTH, and FOSTER, JJ., concur.
July 8, 1957. Petition for rehearing denied.