Masheter v. C. H. Hooker Trucking Co.

250 N.E.2d 621, 19 Ohio App. 2d 169, 48 Ohio Op. 2d 299, 1969 Ohio App. LEXIS 566

• Court: Ohio Court of Appeals
• Decided: August 18, 1969
• Docket: 1005
• Status: Published

Opinions

Putman, J.

This appeal on questions of law from a six thousand dollar ($6,000) judgment of the Common Pleas Court of Tuscarawas County entered upon a jury verdict in a highway appropriation case came on for hearing upon the original papers, briefs of the parties and bill of exceptions, oral argument having been waived.

The state of Ohio contends that the market value opinion of the appraiser called by the property owners should have been stricken from the record because it was based in part on hearsay.

The appraiser testified on cross-examination that after having determined for himself the tonnage of coal and clay on the subject property by personal observation and reference to a recognized book on geology, he then sought and relied upon the opinion of mine operators on the issue of whether such coal and clay were profitably mineable. The mine operators did not testify.

It is urged by the state of Ohio that it is denied its right to cross-examine the mine operators unless the rule be that the property owner must bear the expense of calling the coal mine and clay mine operators separately as his witnesses to offer their opinions and then include such testimony in a hypothetical question put to his appraiser.

Such a rule is contrary to both reason- and authority.

I.

Gains in the fair market value resulting from “hearsay” (or otherwise) are property. They belong to the owner.

They are not to be taken by the government without just compensation.

What the sovereign cannot do directly by journal entry of its Highway Director, it cannot accomplish indirectly through its rules of evidence.

The rule is well established that:

“An expert may testify as to value, even though his conclusions are based in part, or even entirely, upon hearsay evidence.” H & H Supply Co. v. United States (1952), 194 F. 2d 553, paragraph 4 of the headnotes.

See, also, the mass of authority in West’s Digest, Evidence, key 555; 5 Nichols on Eminent Domain, Section 18.42, Basis of opinion, pages 253-256; Wigmore on Evidence 2d Ed., Section 562; 2 Lewis Eminent Domain 3rd Ed., Section 654.

Rules of evidence respecting the opinions on “market value” of skilled real estate appraisers are rooted in reason inseparable from the nature of the market place itself. Land does not sell in the law library, it sells in the market place. By definition, market means a buyer and a seller.

All factors which would be considered by willing, able, fully informed buyers and sellers in fixing the value should be considered by the witness in reaching his opinion. Anglo California Natl. Bank v. Lazard, 106 F. 2d 693, certiorari denied, 308 U. S. 624, 84 L. Ed. 521, 60 S. Ct. 379; United States v. Delano Park Homes, Inc., 146 F. 2d 473; United States v. 25.406 Acres of Land, 172 F. 2d 990, certiorari denied, 337 U. S. 931, 93 L. Ed. 1738, 69 S. Ct. 1496.

If the item of information is such that it would have an effect upon the price a willing, able, fully informed buyer or seller would pay or receive, then the appraiser not only “may” take it into consideration in forming his judgment about the “market price” but courts recognize that to be worth his salt, the appraiser is compelled to consider it.

To adopt a rule of law which closes the courtroom door to the appraiser with a keen ear for the things which move markets up and doAvn would make as much sense as to close the courtroom to doctors who cannot resurrect Louis Pasteur to first testify as to his original experiments.

The law allows opinions to be received upon the question of market price or “value,” and “hearsay” moves the market. An appraiser collects, distills and summarizes “hearsay.” “Hearsay” is the stuff of the market place.

The existence of hearsay in the community is a fact of the market place which the expert puts into evidence by his statement that he found it. In the legal sense this is not a hearsay use of the-’statement at all because it is received not as proof of the truth of the matters contained therein but rather to show the fact of its circulation.

The very fact that coal and clay mine operators are expressing an opinion in the community that coal and clay are profitably mineable on subject land is a fact which apart from its truth may have an actual influence upon the price able and willing buyers and sellers are willing to pay and receive. Whether it does is for the jury. Moreover, can a buyer or seller be said to be “fully informed” who is ignorant of the fact that such coal and clay operators are willing to express such an opinion to prospective buyers and sellers?

We note with care that the presence of and quantity of the minerals were observed by the appraiser and testified to in his direct testimony. No claim of hearsay or “not proven” is made as to this. The fact that the- appraiser talked with others who knew the economics of the mining business was a sound and common appraisal practice.

Similarly, it is customary in these cases for apprais ers to use recent sales of comparable properties as an approach to estimating market value. They proudly declare they have “verified” these “sale prices.” How have they verifed them? They take the word of one or both parties to the transaction. Certainly this is “hearsay” in the sense that the word means simply what some one else told them.

Even if untrue, the fact that these parties declare it to be the price to the community may influence the sub-jectives prices of willing buyers “fully informed.”

II.

We turn now to the separate issue of the importance of who decides.

It is well for us to remember first what we are involved with so that we do not permit legal language to defeat the very purposes for which we exist as courts.

A private citizen has suffered the confiscation of his land by his government. Both state and federal Constitutions say his compensation shall be just and that this compensation is the fair market value. United States v. Miller, 317 U. S. 369, 374; 87 L. Ed. 336; 63 S. Ct. 276.

More important than the right to compensation is the right to have a jury say what it shall be.

Not only is it not the Ohio state law that opinions of witnesses as to market value may not be based on hearsay but such a law would violate the Ohio constitutional right to have a jury decide state of the market. Section 19, Article I, Constitution. Under our system of ordered liberty under law, judges are denied the governmental competence to judge the fair market value of land in these cases absent consent of the property owner.

If it is the opinion of the value witness that certain “hearsay” affects the fair market value, then the right to place it before a jury springs directly from the Constitution of the sovereign who has taken the land. If a judge were to take the entire opinion from the jury’s consideration, it would be a denial of this citizen’s right to have a jury composed of his fellow citizens decide the market, and hence his compensation.

Private ownership of property and free markets are essential to liberty.

If the government is permitted to force the citizen to trade his land for paper money, the decision making power as to the ratio of exchange must be kept in the hands of the people acting through juries, and the decision making procedure must not be so complex or expensive as to discourage the citizen from using it.

Free men have devised these rules as a shield against the arbitrary exercise of government power. We do it this way to stay free.

No error was assigned respecting the court’s charge.

Upon careful consideration, we find no error apparent upon the face of the record prejudicial to the substantial rights of the state of Ohio.

All five assignments of error were carefully considered and are overruled.

Judgment affirmed.

Van Nostban, J., concurs.