County of Contra Costa v. East Bay Municipal District

[835]

DUNIWAY, J.

Action to condemn a strip of land and an adjacent easement for drainage. The sole question involved is whether it was error to permit plaintiff’s counsel, in cross-examining an expert who had testified for defendants as to the value of the property to be taken, to bring out the fact that in another ease the expert had expressed a markedly different opinion as to the value of a comparable property. We find no error.

The county sought to condemn a strip of plaintiff’s land, in fee, containing 4,972 square feet, and a drainage easement containing 3,948 square feet, both for road purposes. The expert testified that the two parcels (8,920 square feet) had a value of $4,211 and that the taking of the easement was equivalent in value to the taking of a fee in the property subject to the easement. He fixed severance damage at $9,489 additional. The jury awarded a total of $535.

The appealing defendants’ land is on San Pablo Dam Road, extending at the rear to San Pablo Creek. It has a frontage of 331.45 feet on the road. It is zoned residential, with minimum lot size of 7,000 feet, 70-foot frontage. The strip of land taken in fee is 15 feet wide, along San Pablo Dam Road, and the drainage easement is for a slope along the strip and a culvert at one end, near a corner of defendants’ property. After the taking, there was still enough depth from the road to satisfy the lot size requirements with minimum 70-foot frontage.

The witness testified on September 4 and 8, 1958. On cross-examination, he was asked whether on February 4, 1958, he had testified, in another condemnation action, as to the value of another piece of property. Counsel for defendants objected. This property was located on the same road, half to three-quarters of a mile away, zoned the same. It was narrower. The shape of both parcels appeared on the witness’ map. It also backed up on the creek. The witness stated that it was less flat, but that the “drainage fee” taken was very similar. The property was closer to the shopping center, which the witness said made it less valuable than defendants’ property. Counsel’s objection was: “He is here as an expert, giving his opinion as to the value of a particular property in question. What he gave as his opinion on another case is certainly far beyond the scope of the rules of going into hearsay and it is not relevant in any respect in this ease ...” The objection was overruled, the court saying: “I don’t see where hearsay