People ex rel. Department of Public Works v. Donaldson

TAYLOR, J. This is an appeal by the state from a judgment and final order of condemnation. Respondents were the owners of 7.8 acres of steep hillside on the north side of Mountain Boulevard in Oakland described as Parcels 3A and 3B in the complaint which appellant sought to condemn for state highway purposes. The jury found the fair market value was $48,000, or approximately $6,000 per acre. Appellant contends that the court erred in instructing the jury and in the admission of certain evidence.

Respondents’ chief evidence of comparable sales was their sale of similar steep undeveloped property in 1954 to the Cerebral Palsy Foundation for about $9,000 per acre, and in 1957 to the Greek Orthodox Church for about $23,000 per acre. On cross-examination, respondents’ expert witness admitted that prior to both of these sales, certain grading had been done on the Cerebral Palsy property and tons of material had been removed from the church property.

The state’s expert witnesses relied for comparables on two other sales located in the immediate vicinity: the 1957 sale by Collonas to the state for approximately $2,800 per acre and the 1962 sale by Creque to the state for approximately $2,933 per acre. The state’s witnesses indicated that both of these sales were voluntary and that the Collonas sale was made prior to the filing of a condemnation action. Respondents’ experts testified that they were aware of the Collonas and Creque sales but did not consider them comparable as they were made under threat of condemnation.

The major issue in this case is whether the trial court correctly instructed the jury, on the request of respondent condemnees that the prices paid by the state for other properties are not a proper basis for the determination of the fair market value of the property here in question.1 We have con-[742]eluded that it was error to so instruct and the judgment must be reversed.

The state properly relies on County of Los Angeles v. Faus, 48 Cal.2d 672 [312 P.2d 680], In Faus, the court, expressly overruling earlier cases, held that the prices paid to eondemnees for other properties may be testified to on direct examination if the condemner can satisfy the trial judge that the properties are comparable and the sales sufficiently voluntary to be a reasonable index of value. The respondents did not contest the comparability of the Collonas and Creque properties from the standpoint of location, physical characteristics, improvements, usability or time of sale. Furthermore, the record discloses that the testimony as to the voluntariness of these sales was conflicting and presented a question of fact for the determination of the jury. Thus, they were properly admitted into evidence (County of San Mateo v. Bartole, 184 Cal.App.2d 422, 438-440 [7 Cal.Rptr. 569] ; People ex rel. Dept. of Public Works v. Murata, 161 Cal.App.2d 369 [326 P.2d 947]). But in instructing as it did, the court, in effect, struck the testimony of the two sales which it had previously properly admitted and precluded the jury from weighing and determining the factual issue of voluntariness. The erroneous instructions deprived appellant of a dispassionate and impartial jury consideration of the favorable testimony of its experts, allowed the respondents’ expert evaluations to stand practically unchallenged and were clearly prejudicial (People ex rel. Dept. of Public Works v. City of Los Angeles, 220 Cal.App.2d 345, 358-359 [33 Cal.Rptr. 797]; People v. University Hill Foundation, 188 Cal.App.2d 327, 332 [10 Cal.Rptr. 437]).