People v. Frahm

BARNARD, P. J.

The state brought this action in eminent domain to condemn some 22 parcels of property required in connection with certain highway construction. Parcel 22 was

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owned by Carl B. Mellor., On August 30, 1945, Mellor had leased the property to Archibek for 10 years, with an option for an additional 10 years. Archibek erected a drive-in restaurant on the property, and on January 17, 1947, subleased it to David and Bose Meyer for a term of five years at a rental of 10 per cent of the weekly gross sales, with a minimum of $50 per week. The Meyers operated the drive-in restaurant until the state took possession of the property on October 6, 1949.

The case, as to Parcel 22, was separately tried before a jury. After several days of trial it was stipulated that the total value of Parcel 22 was $35,000, and the state was permitted to withdraw from further participation in the trial. The defendants Mellor, Archibek, and Mr. and Mrs. Meyer continued a second phase of the trial to determine the value of their separate interests as related to the stipulated total value. The jury found the value of Mellor’s interest to be $17,650; the value of Archibek’s interest to be $11,350; and the value of the Meyer interest to be $6,000. A judgment was entered accordingly, and Archibek has appealed from the part of the judgment in favor of the Meyers.

The appellant first contends that the verdict in favor of the Meyers is not supported by sufficient evidence, is contrary to the evidence, and is contrary to the law. It is argued that the two witnesses for the respondents, David Meyer and Mr. Difani, were not qualified as experts on the valuation of a leasehold interest; that being incompetent to testify as experts their testimony should have been stricken

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toto; that their testimony as to valuation was based largely upon the element of profit and other irrelevant and incompetent matters; that the opinion of David Meyer as to the market value of the sublease, being based largely upon the elements of profit and of his operation of the drive-in, was incompetent in that it related to the value of the leasehold to him but had no relation to its market value; and that an analysis of the entire evidence discloses that the respondents’ sublease had no market value.