CITY OF ENID v. MOYERS

CITY OF ENID v. MOYERS
1946 OK 43
173 P.2d 419
196 Okla. 470
Case Number: 31885
Decided: 02/12/1946
Supreme Court of Oklahoma

CITY OF ENID
v.
MOYERS et al

GIBSON, Chief Justice.

¶1 It is hereby ordered that the dissenting opinion promulgated in the above styled and numbered cause on November 6, 1945, 165 P.2d 818, be and the same hereby is withdrawn, and substituted dissenting opinion permitted to be filed.

DISSENT: CORN, Justice (dissenting).

¶1 I will not concur in the majority opinion for the reason it takes away from the trial court any discretion it had as to the competency of evidence that the owner of the land, six months to one year prior to the taking of the same listed it to real estate dealers at a certain price; and also for the further reason it wholly disregards the well established rule of law that courts may take judicial notice of general increase or decrease in the value of property, as it embraces matters of public concern known by all well informed persons. It is not questioned by anyone but what there was a substantial increase in the value of the land during this period of time. This fact was well known by the trial judge and he was in a much better position under all the facts and circumstances than this court to determine whether the offered evidence was too remote to be admitted.

¶2 If the jury had to rely solely on the testimony of the land owner as to the reasonable market value of the land at the time it was taken, we would be confronted with a different situation, but in this case we have an abundance of evidence by a large number of competent witnesses who qualified as such, that testified as to the value of the land which was more than the amount awarded by the verdict of the jury.

¶3 In 18 Am.Jur. 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. R. Co. v. Holloman, 28 Okl. 419, 114 P. 700, Ann. Cas.1912D, 287; Albert Hanson Lumber Co. v. United States, 261 U.S. 581, 43 S. Ct. 442, 67 L. Ed. 809; 22 C.J. 180, § 125, 31 C.J.S., Evidence, § 182, p. 889, note 51; 18 Am.Jur. 993; 20 Am.Jur. 341.

¶4 In Wichita Falls & N. W. R. Co. v. Holloman, supra, the trial court sustained the objection to tendered evidence to the effect that the defendant, in a conversation with the right of way committee prior to the filing of the proceedings, said that if the railroad was brought into town on the south boundary line of this land and cross the Frisco tracks at the south end thereof, he would furnish a free right of way over the same, but if it went anywhere else, it would cost $ 100. per acre, which he considered the value of the land. The time of conversation was not fixed, and this court indulged the presumption in favor of the correctness of the ruling of the trial court, holding in paragraph 2 of the syllabus:

¶5 'When the admission of the owner of property, the condemnation of which is sought, that the property had only a certain value is sought to be introduced in evidence, much must be left to the discretion of the presiding judge in determining whether the time was too remote and the condition of the property too dissimilar to make the evidence available.'

¶6 In Strait v. Wilkins et al., 23 Cal. App. 774, 139 P. 911, in paragraph 4 of the syllabus, it is held:

'In an action for damages for breach of a contract to exchange lands, the evidence of the market value of the respective properties should relate to a period reasonably proximate to the date of the breach, and the exclusion of evidence relating to the value of plaintiff's land a number of months before the breach was proper.'

¶7 In 22 C.J. 182, par. 132, the rule is stated as follows:

'Evidence on an issue as to the value of real estate, in order to be competent, must relate to the time as of which the value of the property is to be determined, or to a time so near thereto that it may reasonably throw light upon the value at such time, and evidence of value at a time considerably before or after the time to which the controversy relates is incompetent, unless it also appears that the value has remained the same.' See also 31 C.J.S., Evidence, § 182.

¶8 In Sleeper v. Zeiter, 178 Minn. 622, 227 N.W. 662, 663, the Minnesota court said:

'Courts may take judicial notice of general rise or depression in real estate values, since this usually embraces matters of public concern known by all well-informed persons.'

¶9 In Blake v. Bennett et al., 115 Cal. App. 207, 1 P.2d 513, the California court said:

'Court notices fact that since January 1, 1918, values of livestock have been very high at times and very low at other times, and that changes have been frequent.'

¶10 In City of Tulsa v. Horwitz, 131 Okl. 63, 267 P. 852, this court in par. 3 of the syllabus held:

'The extent of the range of inquiry to be permitted regarding the value of property taken or damaged in eminent domain proceedings is largely in the discretion of the trial court.'

¶11 In view of the testimony of witnesses on behalf of both parties, as to the value of the property at the time of the filing of condemnation proceedings where the lowest estimate even of the city's witnesses was in excess of the amount specified in the rejected evidence as to value on the prior date it appears to me that it cannot be seriously contended by any one that the tendered evidence would be admissible as proof of the market value of the property at the time of the taking under said proceedings.

¶12 I respectfully dissent.