State v. MOTTMAN MERC. CO., INC.

Hunter, J.

(dissenting)— I am in agreement with the reasoning in the majority opinion that, in a condemnation proceeding, the market value of gravel in place is a factor that may be considered, together with all other relevant factors, in determining the fair market value of the property. However, this consideration must be restricted to a person qualified to express an opinion, as one of the factors he considers in arriving at his opinion of the fair market value of the entire parcel, and may be considered by the jury only in evaluating the weight of the expert’s testimony.

The majority cite United States v. Land in Dry Bed of Rosamond Lake, Cal., 143 F. Supp. 314 (1956), quoting therefrom:

“As in all cases involving the opinion of the expert as to fair market value, the jury should be instructed that the factors considered by the expert are not in themselves direct evidence of the fair market value of the land condemned, but may be considered by the jury only for the purpose of determining what weight, if any, the jury accords to the testimony of the expert in his ultimate opinion as to the fair market value of the land in question as of the date of taking.” (Italics mine.)

In the cited case, the court further concluded, in part:

“ . . . 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, *735 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.” (Italics mine.)

In the instant case, the pertinent testimony elicited from the purported expert, Dunn, was as follows:

“Q. Mr. Dunn, in arriving at your conclusion, did you make an estimate of the number of yards, of cubic yards of material in place on the Mottman property? A. Yes, I did. Q. Did you then —. . . Q. Did you then multiply this times a royalty basis? A. Yes. Q. And was that the way you arrived at your conclusion as to value on the acre basis? A. That is what I did.”

The trial court thereupon promptly and properly granted the state’s motion to strike Dunn’s testimony as to his opinion of the market value of the respondent’s land. This method of determining value, assuming that Dunn was qualified to express an opinion of market value, was clearly in violation of the rule recognized by the majority, and announced in the Rosamond Lake case, wherein the court further stated:

“(1) that a landowner in dealing with a parcel of land on which there is a mineral, timber or like substance may not introduce expert testimony by which the expert multiplies the gross material present by the market value per unit thereof and thereby arrives at a figure which purports to be fair market value for the parcel; ...”

After this testimony was stricken, the following offer of proof in question was made:

“May it please the Court, on the authority of what is said in the Roeder case, we offer to prove by this witness, sworn and testifying, that if permitted to testify, he would testify that the value of each yard of sand and gravel and building material contained in the property of the respondents, pit site J-49, is 100 per yard.”

The offer of proof was properly rejected because the value per unit of gravel in place at ten cents per yard was not shown to have been considered as a factor by any expert witness who was permitted to testify as to market value of the land. The closest consideration of this factor by any *736 expert was that given by Holbrook, the landowner’s expert, who did consider a royalty basis as one of his factors, but the record is silent as to any consideration given by him to a unit value of ten cents per yard, as proffered by the respondent in the offer of proof.

As recognized in the Rosamond Lake case, there are only two ways by which market value can be proved: (1) by comparable sales, and (2) by opinion testimony. The court in that case stated:

“Such test of fair market value is. generally made in the case of land by the use of comparable sales. If there are no comparable sales, or an insufficient number of them to indicate the market, then secondary or opinion evidence may properly be used. Olson v. United States, supra; Minnesota Rate Cases (Simpson v. Shepard), 230 U. S. 352 , 33 S. Ct. 729 , 57 L. Ed. 1511 ; Stephenson Brick Co. v. United States, 5 Cir., 110 F. 2d 360 ; Welch v. Tennessee Valley Authority, 6 Cir., 108 F. 2d 95 , certiorari denied 309 U. S. 688 , 60 S. Ct. 889 , 84 L. Ed. 1030 .”

The effect of the majority holding is that the offer of proof of the unit value of gravel is admissible, irrespective of this factor having been considered by an expert witness in arriving at his conclusion, thereby permitting the jury to consider it separate and apart from its evaluation of the opinion of the expert.

The majority holding has the additional effect of qualifying each member of the jury as an expert to determine fair market value by examining independent relevant factors and then drawing a conclusion as to market value therefrom, as an expert would be entitled to do; whereas, the jury is entitled to consider only comparable sales or opinion evidence as to the market value of the land in arriving at its verdict in this type of case.

I concur with Judge Ott that instruction No. 8 was not prejudicial for the reasons expressed in his dissenting opinion.

I dissent.

March 19, 1958. Petition for rehearing denied.