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November 6, 1964

UNITED STATES of America, Plaintiff,
60.14 ACRES OF LAND, MORE OR LESS, situate IN WARREN COUNTY, State of PENNSYLVANIA, and Arthur W. Seibel et al., Defendants

The opinion of the court was delivered by: WILLSON

This civil action was tried to a jury at the June 1964 civil term at Erie. This Court for several years has been trying a number of civil actions in which the issue is the amount of just compensation due property owners as a result of the Government's condemnation of several hundred properties in the construction of the Allegheny River Reservoir Project commonly known as the Kinzua Dam.

In this case, Florence Laubach and Carl F. Laubach were the owners of a residential property situate in Gorydon Township, Warren County, Pennsylvania. The property was condemned on January 18, 1963. The owners had purchased the property in 1938, and from that time until the date of condemnation had made many improvements particularly as to the exterior and interior of the dwelling house. Also, the grounds had been landscaped with plants, shrubs, shade trees, hedges, and bushes of various kinds that made the property a beautiful residence. The interior was modern in all respects with built-in cupboards, china closets, and a music cabinet. The library was paneled in fir plywood with an adjacent sun room equipped with glass throughout. The house was equipped with a modern kitchen, two bathrooms, a cellar, a modern heating system, water pipe lines, copper tubing plumbing, and in all respects the dwelling house was convenient. A modern cement-floor garage 28' X 36' had three stalls for cars, and under one stall was a cellar built for roots and vegetables. The vegetable storage place was lined with concrete and had an air circulating arrangement. The second floor of the garage was also floored in its entirety and was suitable for an apartment. In addition to the garage there was another outbuilding referred to as the woodshed.

 The photographs introduced in evidence give a visible description of the dwelling house, garage, and the grounds surrounding the property.

 The landowners testified on their own behalf and fixed the value at $ 32,000.00. The jury awarded $ 26,000.00 which is the amount of the judgment entered. The Government moved for a new trial. During the trial of the case, the Government presented but one witness, a man by the name of John J. Minsinger of Pittsburgh. An objection by plaintiff's counsel that the witness was incompetent to testify as to the market value of the property on the date of condemnation was sustained. The Government says this was error and it is the sole basis for its new trial motion. The trial record indicates that before the objection was sustained as to the qualifications of this witness some sixty-one pages of testimony were taken on direct and cross examination, as well as interrogation by the trial judge. The occupation of the witness was that of appraiser primarily, but his work in recent years had been largely confined to Allegheny County, Pa. He, however, held a real estate broker's license in Pennsylvania. He came to Warren County in 1961, for the purpose of investigating and appraising some 200 properties which had been or were to be condemned by the Government during the course of construction of the reservoir project. He had no general knowledge of market prices or real estate values in the Warren County area where the property was situate. He was not in the business of making appraisals or buying and selling real estate for others in this area. He attempted to qualify as a witness in this case by giving consideration to four properties which he called 'comparable sales.'

 In the trial of these Kinzua Dam cases, this Court has in recent months spent considerable time in examining the decisions and the text books relative to the qualifications of experts who are called to testify in land condemnation cases. One of the key cases on this subject is United States v. 13,255.53 Acres of Land etc., 158 F.2d 874 (3rd Cir. 1946), where the Court of Appeals speaking through Judge McLaughlin made the following observations:

 'For a witness to give his opinion on market value of land, it must appear that he has actual personal knowledge of the facts affecting the land at the time of taking. With that background such person is assumed to be in a position to fairly estimate the value of the property. Recent sales of the particular premises or of similar parcels, generally speaking, are the most desirable standard but in the absence of such sales, valuation can still be arrived at by opinion evidence. Montana Railway Co. v. Warren, 137 U.S. 348, 354, 11 S. Ct. 96, 34 L. Ed. 681. As the Court said in Love v. United States, 8 Cir., 141 F.2d 981, at page 984:

 "There is no exact rule as to the amount of knowledge a witness must possess in order to be permitted to testify as to the value of land. If it is shown that he knows the land and its surroundings, and that he has an opinion based upon something more than conjecture as to its value, he may be permitted to state his opinion. After a witness has testified that he knows the property and its value, he may be called upon to state such value. The means and extent of his information, and therefore the worth of his opinion, may be developed at length on cross-examination."

 In a recent case from the United States Supreme Court, United States v. Merz, 376 U.S. 192, 84 S. Ct. 639, 11 L. Ed. 2d 629, Justice Douglas indicated that it was the duty of the trial judge to see that witnesses were properly qualified as experts and whether the comparable sales on which they relied were in fact comparable. It is certain that the proposed witness did not meet the general qualifications of an expert as to market value because he lacked general knowledge of the subject matter. He was sent to Warren County especially to investigate and appraise property to be condemned. The witness was in exactly the same category as the proposed witnesses mentioned in two decisions of the Supreme Court of Pennsylvania. In the first case cited, Schuck v. West Side B.R. Co., 283 Pa. 152, 128 A. 832, the language of the Court is:

 '* * * his) knowledge * * * of sale or holding prices in that community * * * was mainly (of his) own properties' several miles away; that he had 'neither sold, bought, nor handled any property * * * within several miles' of plaintiff's property; and that his knowledge as to sales was obtained by looking 'them up in the records for the purpose of testifying in this case.' This was inadequate proof of his competency.'

 And in Tiffany v. Delaware, L. & W.R. Co., 262 Pa. 300, 105 A. 101, the language is:

 'His testimony shows not only an utter lack of personal knowledge or familiarity with those things which qualify a witness to express an opinion as to market value in estimating damages in such cases, but it discloses an effort on the part of the witness to qualify himself as a witness by resorting to the public records to learn therefrom what sales of land had been made in the neighborhood, when made, and the prices obtained therefor -- a most objectionable proceeding from every point of view.'

 The law on this subject has been well and succinctly stated in the brief filed by Joseph J. Malizia, Esquire, attorney for landowners. Counsel having correctly stated the law, his language is adopted. It is as follows:

 'A. Qualification of an Expert Generally?

 'In the first instance, 'The qualification of a witness to render an opinion on the question of value may be the subject of a preliminary inquisition by the Court in the nature of a voir dire.' See Nichols on Eminent Domain, Vol. 5, Section ...

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