fee simple; (2) a public nine hole golf course; (3) a frame club house; (4) a frame pro shop and attached frame garage; and (5) a liquor license, restaurant, bar and inventory.
Sale No. 3, that of the Maplehurst Country Club, located 33 road miles from Tract 1027, near Lakewood, New York, was made on August 25, 1960, for a consideration of $ 125,000. The assets conveyed consisted of (1) 119 acres in fee simple; (2) two public nine hole golf courses; (3) a frame club house; (4) a frame pro shop; (5) a parking lot; and (6) a liquor license and restaurant.
Before being permitted to relate the sales prices of those golf courses, Samuelson gave their dates of sale and described in detail the features, yardages, and scenic appeal of each, compared them vis-a-vis the Kinzua course, and indicated the road mileage of each from Tract 1027. He further testified that he had visited all three 'comparables', discussed their attributes and sales with principals involved in the sales transactions, and verified such transactions by the public records. Before Samuelson testified as to the sales prices, the landowners' attorneys were permitted to cross-examine him upon his familiarity with the golf courses and their sales, and subsequent to completion of his testimony, presented witnesses to rebut comparability.
We are bound in questions of valuation by standards of federal law. Cf. United States v. Certain Parcels of Land In City of Philadelphia, etc., 144 F.2d 626, 155 A.L.R. 253 (3d Cir. 1944). Those standards clearly provide that a real estate expert may testify in a condemnation proceeding as to sales prices of similar properties when he has taken such sales into consideration in arriving at an opinion of fair market value. Harwell v. United States, 316 F.2d 791 (10th Cir. 1963); United States v. 18.46 Acres of Land, etc., 312 F.2d 287 (2d Cir. 1963); United States v. Johnson, 285 F.2d 35 (9th Cir. 1960); District of Columbia Redev. L.A. v. 61 Parcels of Land, 98 U.S.App.D.C. 367, 235 F.2d 864 (1956); United States v. 5139.5 Acres of Land, etc., 200 F.2d 659 (4th Cir. 1952). It must first be demonstrated to the satisfaction of the court that the properties sold were sufficiently similar and proximate in location and time of sale to the property in litigation as to be of utility in reflecting the market value of the latter. 5 Nichols, Eminent Domain, § 21.31. 'Similarity does not mean identical, but having a resemblance'. Id., p. 440.
In our opinion the alleged comparable golf course sales were sufficiently similar and proximate in time to be useful in reflecting the fair market value of the condemned golf course. Further, we believe that insofar as proximity of location is concerned, a court should exercise its discretion in accordance with exigencies of a case, and if land is not of a character commonly bought and sold, should allow evidence of the sales of similar land located at some distance from the land taken. As was stated in Knollman v. United States, 214 F.2d 106, at p. 109 (6th Cir. 1954), 'the proper test of admissibility in such cases is not the political dividing line, be it township or county.'
We do not believe that it was an abuse of discretion to permit testimony as to sales of golf courses located in an adjoining New York county, leaving the weight of such testimony for the jury.
III. Adequacy of Jury Instructions
Finally, the landowners claim prejudicial error in that the court did not instruct the jury in detail concerning the three principal dollars and cents guides employed generally by real estate experts in formulating their opinions as to fair market value, namely, the income approach, reproduction cost approach, and comparable sales approach.
There was no need to mention the income approach in charging the jury. Not one of the experts testified to relying upon the income history of the Kinzua Valley Golf Course in arriving at an opinion of fair market value. The income approach simply was not at issue in this case.
We are not apprised by the owners of wherein the charge concerning reproduction costs was not sufficient. We have heretofore discussed compliance with the only additional instruction or correction requested by them. The portion of the charge devoted to reproduction cost estimates in our judgment was adequate, and we think the claim of prejudicial error is groundless.
It is also alleged that the court in its charge should have explained certain factors for the jury to take into consideration in determining the weight to be given to alleged comparable sales. It appears that the factors listed in the owners' brief are actually those intended for consideration of the court in determining admissibility of such evidence in the first instance.
The owners had ample opportunity to attack the alleged comparability of the Conewango Forks, Cassadaga, and Maplehurst golf courses on cross-examination, by way of rebuttal, and in closing argument. They also had the opportunity to submit points for charge. They cannot now be heard to condemn the court for failing to aid in the discharge of their evidentiary burden.
It appears that other grounds for a new trial were claimed by the owners in their motion, but since such alleged grounds were not developed either in their brief or upon oral argument, we assume that they are not being pressed.
An appropriate order will be entered.