State ex rel. State Highway Commission v. Oregon-Washington Lumber Co.
This text of 544 P.2d 1058 (State ex rel. State Highway Commission v. Oregon-Washington Lumber Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
In this condemnation action defendant appeals from a jury verdict of $340,000 awarded it, alleging errors in the receipt of certain testimony entitling it to a new trial.
The first assignment challenges the receipt of certain testimony relating to a survey of the properties to determine the respective square footage taken in each and the total of all, and the aerial photo upon which it was delineated. Ronald Banzer was employed by plaintiff as assistant resident engineer on the major highway project resulting in this acquisition. Mr. Banzer was the opening witness in this eight-day trial, and the matters challenged arose in the early part of his testimony. We set out the pertinent portions1 of the testimony. The testimony was immediately prior to the witness’s identification of the aerial photo, upon which had been outlined in colors the four parcels of land involved in the taking. The witness was then called upon to explain to the jury what the photograph generally depicted. Although the actual survey work leading to the outlining of the various parcels was not [190]*190done directly by the witness, it was done by surveying crews operating under his general charge. We think the exhibit, which was offered and received not as depicting a completely accurate survey of the various parcels outlined as might be a surveyor’s detailed map, but simply as one which with substantial accuracy identified the areas involved in the taking both to one another, to the project and to remaining lands of the defendant, was clearly admissible. Trook v. Sagert, 171 Or 680, 690, 138 P2d 900 (1943).
The second part of the first assignment also relates to testimony of Mr. Banzer received shortly after the above ruling. We set out its relevant portions from the transcript.2
[191]*191Whether a lay or expert witness has the requisite knowledge, training and experience to testify concerning factual observations made by himself and those working under his supervision and control is a matter in the individual case which is largely within the discretion of the trial judge. State v. Golub, 24 Or App 19, 544 P2d 609 (1976), and cases cited therein. That has long been the rule in Oregon. Fidelity Sec. Corp. v. Brugman, 137 Or 38, 46, 1 P2d 131, 75 ALR 1333 (1931).
Defendant contends that since Mr. Banzer was neither a registered land surveyor nor a licensed regis[192]*192tered civil engineer in Oregon, he was not qualified to testify concerning the survey and the amount of land taken. The trial court, as well as both counsel, carefully examined Mr. Banzer at length concerning his training and experience. The court concluded that he was qualified.' The weight to be attached to his testimony was for the jury. There was no abuse of discretion.
In its brief defendant discusses at length confusion which arose early in the trial from an admitted error in the legal description in the complaint. Since, however, this was amended without objection at the end of the first day of trial and since defendant did not seek but in effect refused at that time to ask for a mistrial, we decline to consider the matter.
The second assignment relates to certain testimony adduced from Mr. Kolberg, a qualified real estate appraiser, and relates to evidence concerning the acquisition price paid by defendant for three parcels of property which together included the areas taken. The objection specifically is as to two of the parcels and is based on remoteness of the acquisition dates in relation to the time of taking. Defendant agrees that this is normally a question within the discretion of the trial court, Douglas County v. Meyers, 201 Or 59, 268 P2d 625 (1954), where five years was upheld; Highway Comm. v. Jones, 237 Or 372, 374, 391 P2d 625,(1964); Highway Comm. v. Empire Building, 17 Or App 616, 523 P2d 584, Sup Ct review denied (1974); but here contends that the trial court abused that discretion. The two pieces were acquired by defendant in August and November 1967. The actual filing of the complaints, here consolidated for trial, was in March and April 1973. The time of the first public hearing on the proposed 1-5 highway widening and interchange improvement in the affected area was’in April 1971 and w.as based upon a design change proposed in July 1969. Mr. Kolberg in his testimony allowed for and considered upward changes in land values since the [193]*1931967 acquisition. We think the court did not abuse its discretion in allowing the testimony.
Affirmed.
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Cite This Page — Counsel Stack
544 P.2d 1058, 24 Or. App. 187, 1976 Ore. App. LEXIS 2266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-state-highway-commission-v-oregon-washington-lumber-co-orctapp-1976.