City of Enid v. Moyers , 196 Okla. 470 ( 1945 )

This is a proceeding in condemnation commenced March 4, 1943, by the city of Enid to acquire title to five tracts of land consisting of 589 acres to be used as a municipal airport. Tract No. 1, consisting of 298 acres, belonged to D.W. Moyers and was occupied by B.L. Freed as tenant under a written lease expiring August 1, 1946. The lease called for no cash rental but Moyers was to receive a share crop rental of one-third of the crops produced. The land was appropriated on March 16, 1943. There were 256 acres of growing crops on the land at that time. The appraisers assessed Moyers' damages, representing his interest in the land, improvements and growing crops, at $27,170.50. They assessed Freed's damages, representing the value of the lease and growing crops, at $2,429.50. Both Moyers and Freed demanded a jury trial, and the case was tried before a jury on January 31, 1944, and the jury assessed Moyers' damages at $34,040, and Freed's damages at $6,000. From a judgment entered upon the verdict for said amounts, the city has perfected an appeal.

The witnesses for the defendants estimated Moyers' damages at from $115 to $130 per acre, and Freed's damages at from $6,120 to more than $8,000. Moyers testified that the fair market value of the land subject to the Freed lease at the time it was taken was $125 per acre. The witnesses for the city estimated the total damages to both defendants at from $75 to $95 per acre, and Freed's damages as low as $4,000.

Neither party introduced any evidence during the trial as to increase in the market value of land during the year preceding the appropriation of the land. However, in response to the city's motion for new trial, the defendants filed eight affidavits to the effect that during the year 1942 and up to March 16, 1943, farm lands in the vicinity of Enid increased from 25 to 30 per cent.

The city offered to prove by two real estate brokers that from six months to a year before the appropriation of the land Moyers listed the land for sale for $22,000, which would include the value of the land, improvements and growing crops, and that the broker's commission was to be paid out of the sale price. The court sustained an objection to these offers because they were too remote. The city argues that this was prejudicial to the substantial rights of the city and constitutes reversible error. We agree with this contention, and our decision on this question makes it unnecessary to consider the other contentions of the city.

The measure of damages for land actually taken in condemnation proceedings is the fair market value of the land at the time it is taken. Oklahoma Gas Electric Co. v. Kelly,177 Okla. 206, 58 P.2d 328; Grand River Dam Authority v. Bomford, 188 Okla. 512, 111 P.2d 182; 18 Am. Jur. 875, 903; 29 C.J.S. 968, 1068; 20 C. J. 728, 826. While the range of inquiry as to such value rests largely in the discretion of the trial court, and the action of the trial court in admitting or excluding evidence as to value will not be disturbed unless there has been an abuse of such discretion (State v. Winters,195 Okla. 243, 156 P.2d 798), the general rule is that "any competent evidence of matters, not merely speculative, which would be considered by a prospective vendor or purchaser, or which tend to enhance or depreciate the value of the property, is admissible," 31 C.J.S. 883. In 18 Am. Jur., at page 986, it is said that "objections going to pertinency and relevancy should be sustained only in extreme and plain cases." And an offer by the owner to sell the property for a certain price is admissible as an admission against interest as to its value unless the offer is too remote in point of time. Wichita Falls N.W. Ry. Co. v. Holloman, 28 Okla. 419, 114 P. 700; Albert Hanson Lumber Co. v. United States, 261 U.S. 581, 67 L. Ed. 809, 43 S. Ct. 442; 22 C. J. 180, § 125, 31 C.J.S. 889, note 51; 18 Am. Jur. 993; 20 Am. Jur. 341.

Bearing in mind these principles of law, we are of the opinion that the substantial rights of the city were prejudicially affected by the rejection of the proffered evidence, and consequently the trial court abused its discretion in sustaining the objection to such evidence. The damages awarded were substantially in excess of the amount for which the land was allegedly offered for sale.

The defendants cite cases to the effect that the courts will take judicial notice of the fact that at times the value of property fluctuates, but the trial court, and this court on appeal, cannot take judicial notice that the property in question increased in value during the year preceding the taking of the same by the city as much as the difference in the alleged listings and the amount of the verdict and judgment.

What we have said has reference only to the judgment in favor of Moyers. The errors do not apply to the judgment in favor of Freed, and we think the judgment in his favor is without substantial error.

The judgment in favor of Freed is affirmed. The judgment in favor of Moyers is reversed with directions to grant a new trial as to his claim.

GIBSON, C.J., and OSBORN, BAYLESS, WELCH, and DAVISON, JJ., concur. RILEY and ARNOLD, JJ., concur in conclusion. CORN, J., dissents.