# State v. MOTTMAN MERC. CO., INC.

> Washington Supreme Court · February 20, 1958 · 51 Wash. 2d 722

URL: https://www.frixlaw.com/law-library/cases/9790658

## Case

- **Full name:** The State of Washington, Respondent, v. the Mottman Mercantile Co., Inc., Appellant
- **Court:** Washington Supreme Court
- **Decided:** February 20, 1958
- **Citations:** 51 Wash. 2d 722; 321 P.2d 912; 1958 Wash. LEXIS 494
- **Precedential status:** Published
- **Opinion:** Dissent by Ott
- **Judges:** Hill, Mallery, Ott, Hunter
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9790658

## Opinion text

Ott, J.
(dissenting) — I agree with the statement of the majority that the purpose of a condemnation proceeding is to determine the fair market value of the property. The jury was required to make two determinations: (1) what was the property’s highest and best use, and (2) what was the fair market value of the property at the time of the taking.
Assuming that the jury found that the highest and best use was as a gravel pit, was there error in the trial which precluded them from determining its fair market value?
Fair market value was properly defined in instruction No. 4 as
“ . . . the price which the property will bring when it is offered for sale by one who desires, but is not obliged to sell it, and is bought by one who is under no necessity of having it. It is not the value put on the property by the owner because of any sentiment which he has for the property, nor because he may be unwilling to sell it, nor is he *731 limited to what the property will bring at a forced sale. . . . you will, in fixing the value of the property, consider it simply as the case of a willing seller and a willing buyer without the necessity on the part of either to sell or to buy.”
Instruction No. 6 told the jury that they should
"... take into consideration all of the uses and purposes for which the land is adapted or suitable; the character and quality of the tract taken, the shape, size and contour of the land and the feasibility, if any there may be, of operating the land for the uses and purposes for which it may be adapted as shown by the evidence.”
These instructions are in accord with the rule stated in Donaldson v. Greenwood, 40 Wn. (2d) 238, 242 P. (2d) 1038 (1952), and In re Town of Issaquah, 31 Wn. (2d) 556, 197 P. (2d) 1018 (1948).
In Ham, Yearsley & Ryrie v. Northern Pac. R. Co., 107 Wash. 378 , 181 Pac. 898 (1919), we approved the following:
“ ‘It [value] includes every element of usefulness and advantage in the property. . . .
“ ‘This does not mean that all the capabilities are to be priced separately and the aggregate put down as the true value, for they do not exist independently of each other, and cannot all be realized at the same time; nor will it do to restrict the estimate to any one of them, because in one view that would exclude the other elements altogether, and in another view it would tend to make the degree of benefit to the party appropriating and condemning for a particular purpose the real measure of value, which is never allowable.’ Southern R. Co. v. Memphis, 126 Tenn. 294 , 148 S. W. 662 , 41 L. R. A. (N. S.) 828, 838.”
In the same opinion, 2 Lewis on Eminent Domain (2d ed.) 1056 is quoted with approval:
“ ‘The conclusion from the authorities and reason of the matter seems to be that witnesses should not be allowed to give their opinions as to the value of property for a particular purpose, but should state its market value in view of any purpose to which it is adapted. The condition of the property and all its surroundings may be shown, and its availability for any particular use. If it has a peculiar adaptation for certain uses, this may be shown, and if such peculiar adaptation adds to its value the owner is entitled *732 to the benefit of it. But, when all the facts and circumstances have been shown, the question at last is, what is it worth in the market.’ ” (Italics mine.)
In Ham, Yearsley & Ryrie v. Northern Pac. R. Co., 110 Wash. 467 , 188 Pac. 527 (1920), we held that the opinion of an expert witness should have been excluded when it was shown that he based his opinion upon the ultimate value of the use to which the condemner intended to put the property.
In the instant case, it is apparent that the witness Dunn based his opinion as to the value of the property solely upon the product of the estimated quantity of gravel in the property and the price that he was currently receiving for gravel. Testimony as to the unit price of gravel is not a criterion of what a willing purchaser would pay, in the absence of a showing that there is a present demand for the entire quantity at the unit price.
The majority concede that evidence of the unit price of the gravel content is not an element, under the facts in this case, to establish market value of the entire tract. Yet, the majority would permit the witness to testify to the value solely upon such a basis. Mr. Dunn did not qualify as an expert. He was not shown to be in the business of buying and selling real estate. He was qualified to testify as to the price that he was currently receiving for gravel which he sold from a pit on adjoining land, but this testimony was not indicative of market value, nor was it a criterion, in the absence of a showing of a present demand which a willing purchaser would use as determinative of the value of the entire area.
As stated in San Diego Land & Town Co. v. Neale, 88 Cal. 50, 63 , 25 Pac. 977 (1891):
“We think that where a witness bases his opinion entirely upon incompetent and inadmissible matters, or shows that such matters are the chief elements in the calculations which lead him to such conclusions, it should be rejected altogether.” (Italics mine.)
Limiting this discussion to the offer of proof of the defendant, namely, that Dunn would testify as to what he was *733 receiving per yard for his gravel, such testimony is not admissible. It is for the expert witness to testify as to his opinion of the value of the property. The jury cannot be expected to arrive at fair market value by considering only particular facts.
“Just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined.” (Italics mine.) Oleck on Damages 412, § 220.
To permit such testimony by Dunn would be inviting the jury to segregate the value of the gravel from the value of the land, and such segregation, the majority admit, is an improper method of arriving at fair market value.
In United States v. Land in Dry Bed of Rosamond Lake, Cal., 143 F. Supp. 314 (1956), the court stated the rule to be
"... that the landowner is entitled to have an expert or lay witness describe the commodity or substance on the land, the quantity thereof, the going price thereof as factors only, upon which the expert may in part base his value as to the fair market value of the parcel in question; that a landowner is not entitled to present testimony as to the fair market value of the mineral or timber or other substance apart from the value of the land. ... In other words, a clear distinction must be drawn between what is presented and considered as a factor underlying the expert’s opinion as contrasted with opinion as to the fair market value of the substance, timber or mineral itself, apart from the land.”
Dunn’s testimony in this case would merely establish the current value of the gravel, apart from the land. It is not probative of the fair market value of a gravel pit, or of what a willing buyer would pay for 15.6 acres of land which could be used as a gravel pit. It was not error to exclude this testimony.
The majority further hold that the trial court erred in giving instruction No. 8. Reading the complete instruction reveals that the jury were instructed that they should consider any possible value the land might have as a gravel pit. There is no contention that acreage property cannot be used as a gravel pit. Instruction No. 10 states:
*734 “You are further instructed that in arriving at just compensation to the owners for the land taken in this case, you are to consider the timber as well as the sand, gravel and building materials, all to be a part of the land to such extent as you find the same to be present from the evidence.”
Considering this instruction, together with Nos. 2, 6, 7, and 9, the language of instruction No. 8 was not prejudicial to the appellant.
The judgment should be affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9790658. Public record. Not legal advice.