United States v. Arthur E. Baker, Doris M. Baker, John L. Roach and Bettie Jo Roach

279 F.2d 603 UNITED STATES of America, Appellant, v. Arthur E. BAKER, Doris M. Baker, John L. Roach and Bettie Jo Roach, Appellees. No. 16461. United States Court of Appeals Ninth Circuit. May 24, 1960. Perry W. Morton, Asst. Atty. Gen., Jack D. H. Hays, U. S. Atty., Phoenix, Ariz., William E. Eubank, Asst. U. S. Atty., Phoenix, Ariz., Roger P. Marquis, Robert S. Griswold, Jr., Attys., Dept. of Justice, Washington, D. C., for appellant. Paul LaPrade, Louis B. Whitney, Loretta Whitney, Phoenix, Ariz., for appellees. Before STEPHENS, BARNES and MERRILL, Circuit Judges. BARNES, Circuit Judge. 1 This was a condemnation proceeding. The jurisdiction of the district court arises under Title 28 U.S.C. § 1358 . A jury returned a verdict for the property owners in the sum of $165,500 from which judgment the government appeals. This Court has jurisdiction under Title 28 U.S.C. § 1291 . 2 The government bases its appeal on the failure of the trial court to instruct the jury properly in two respects. It first complains that the trial judge refused to give a requested instruction on comparable or similar sales as the best evidence of market value. The government secondly complains…

This was a condemnation proceeding. The jurisdiction of the district court arises under Title 28 U.S.C. § 1358 . A jury returned a verdict for the property owners in the sum of $165,500 from which judgment the government appeals. This Court has jurisdiction under Title 28 U.S.C. § 1291 .

The government bases its appeal on the failure of the trial court to instruct the jury properly in two respects. It first complains that the trial judge refused to give a requested instruction on comparable or similar sales as the best evidence of market value. The government secondly complains that the jury should have been instructed to disregard the use to which the government intended the land put in their consideration of its market value.

The land subject to condemnation in this case consisted of 132.4 acres of a 513 acre truck and cotton farm located on the road joining Luke Air Force Base with Phoenix, Arizona. The land was *604 being condemned for use as a Capehart Housing project for the military personnel at Luke Air Force Base. The witnesses for the government testified that the land was worth $92,860 and $93,000. The witnesses for the appellees testified that the land was worth,…

I concur.

As to the comparable sales instruction, however, the basis for my judgment differs from that of my associates. In my view, the court properly refused this instruction for the reason that there was no evidence of sales which would warrant the giving of the instruction.

Testimony with respect to comparable sales was given, as foundation for their opinions, by the expert witnesses called by the government. They testified that *607 they had cheeked into sales of other lands and had taken such sales into consideration in . arriving at their appraisals of the condemned property. Data relating to such sales were not given to the jury. There was no proper direct proof of any one sale. 1

The evidence thus was not such as would allow the jury to determine for itself the fact and nature of any sale. Its only effect was to add weight to the opinions expressed by the government witnesses: a matter for argument and not for instruction.

. One witness testified that he had talked to a subdivide!-; that be had found out the price the subdivider had paid; that it was $198.44 per acre. Although such information is sufficient basis for opinion, it is not competent evidence of the sale…