United States v. 0.59 Acres of Land

109 F.3d 1493, 97 Daily Journal DAR 4443, 46 Fed. R. Serv. 1122, 97 Cal. Daily Op. Serv. 2515, 1997 U.S. App. LEXIS 6228, 1997 WL 152768
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 3, 1997
DocketNos. 95-16582, 95-16601
StatusPublished
Cited by19 cases

This text of 109 F.3d 1493 (United States v. 0.59 Acres of Land) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. 0.59 Acres of Land, 109 F.3d 1493, 97 Daily Journal DAR 4443, 46 Fed. R. Serv. 1122, 97 Cal. Daily Op. Serv. 2515, 1997 U.S. App. LEXIS 6228, 1997 WL 152768 (9th Cir. 1997).

Opinion

RONEY, Senior Circuit Judge:

The landowners appeal a judgment awarding them less compensation than claimed for the Government’s declaration of easements over two separate tracts of land. A Government expert’s appraisal report was put before the jury with several pieces of inadmissible evidence attached. Because this rendered the trial unfair to the defendant landowners, we reverse.

In March 1992, the United States filed complaints and declarations of taking on behalf of the Bureau of Reclamation to acquire permanent easements over a 33.31-acre tract of land owned by Frank and Verne Gee (Gee tract) and a 3.94-aere tract owned by Jack Sheaffer and John Low (Sheaffer tract). The easements were part of the construction of a high-voltage power line needed to operate pumping equipment for the Central Arizona Project (CAP), a 300-mile-long water delivery project transporting Colorado River water to central and southeastern portions of Arizona. The easements were a 10-foot strip across the Gee tract comprising 0.59 acres and a 25-foot strip across the Sheaffer tract comprising 0.46 acres. The condemnation cases for the two tracts were consolidated for trial.

The Government offered into evidence the 106-page and 77-page appraisal reports of Jay Vance, its valuation witness for each of the two properties. The report had attached several items which the Government correctly concedes would not be admissible if offered directly into evidence: (1) a tax assessor’s opinion, (2) a letter expressing an opinion of a non-expert homeowner, (3) a letter expressing an intent to purchase prop[1496]*1496erty, (4) 19 and 23-year-old purchase prices of the properties, and (5) an unscientific homeowner survey on the effect of the electromagnetic fields (EMFs) generated by the power lines. The trial court erroneously overruled the objections as to the first three items. The opinion of a deputy assessor for the county treasurer that the 115-kv transmission line would not change assessed value of the property for tax purposes was incompetent and prejudicial in a condemnation proceeding. See United States v. Certain Parcels of Land, 261 F.2d 287, 289 (4th Cir. 1958); United States v. Delano Park Homes, 146 F.2d 473, 474 (2d Cir.1944). The district court itself stated that tax assessments are wrong in 98 percent of cases but, nonetheless, allowed the evidence in this case. The letter from a homeowner expressing her lay opinion about the effects of EMFs on her estimate of home value and a letter containing a mere offer to buy “comparable” property were both plainly inadmissible. See United States v. Dillman, 146 F.2d 572, 575 (5th Cir.1944).

As to the fourth and fifth items, although clearly inadmissible, there is some question as to whether the defendants could obtain a reversal on those items alone. The district court correctly ruled that the 23-year-old purchase price of the Gee tract and the 19-year-old purchase price of the Sheaffer tract were inadmissible. See 4 Nichols on Eminent Domain, § 12B.04[1] (3d Ed.1990). Due to an alleged inadvertent mistake of the Government’s trial counsel, however, the redaction ordered by the district court was not complete. The purchase price evidence was present in the exhibits that went before the jury. The Government argues the landowners’ counsel waived error by failure to review the exhibit prior to its entry into evidence.

No specific objection was made to the homeowner’s survey on' the effect of EMFs, which was prepared by a non-witness of unknown qualifications in violation of Rule 703, and would not meet the Daubert standards for scientific evidence. It is third-hand inadmissible hearsay. The Government argues there was no plain error. See Fed.R.Evid. 103(d); McClaran v. Plastic Industries, 97 F.3d 347, 357 (9th Cir.1996).

We need not reach the waiver issue in either case, even though those items could contribute to an unfair verdict, because the admission of the other three properly objected to items discussed above requires reversal. Although any single item standing alone might be insufficient to require reversal, the cumulative effect could well have caused an unfair award.

The jury awarded substantially less compensation than claimed by the landowners based upon the testimony of their expert: $286,500 for the easement across the Gee tract and $152,325 for the Sheaffer tract. The Government experts testified that just compensation should be $2,000 and between $21,500 and $31,500 for the two tracts respectively. The jury awarded $18,400 for the Gee tract and $34,000 for the Sheaffer tract.

Of course, an expert may base his opinion at trial on inadmissible facts and data of a type reasonably relied upon by experts in his field. Fed.R.Evid. 703. The rules do not specifically provide for the admission into evidence of the otherwise inadmissible evidence relied upon by the expert. See Michael H. Graham, Federal Practice and Procedure § 6651, Bases of Opinion Testimony by Experts (1992).

When inadmissible evidence used by an expert is admitted to illustrate and explain the expert’s opinion, however, it is “necessary for the court to instruct the jury that the [otherwise inadmissible] evidence is to be considered solely as a basis for the expert opinion and not as substantive evidence.” Paddock v. Dave Christensen, Inc., 745 F.2d 1254 (9th Cir.1984). No such limiting instruction was given to the jury in this case. Without this careful handling, inadmissible evidence under the Rules of Evidence cannot be properly admitted simply by attachment to an appraiser’s report. In any event, the specific items challenged by the landowners are not of the kind that might be admitted in connection with the expert’s tes[1497]*1497timony, regardless of the presence of a limiting instruction.

Inasmuch as there will be a retrial, we need to address issues raised on appeal that may reappear in the subsequent trial. The district court correctly ruled on the remaining three issues raised on this appeal.

First, the district court denied the landowners’ motion in limine for an order excluding from evidence any reference to the preexisting Tucson Electric & Power (TEP) 45-kv transmission line within a right of way abutting landowners’ property. The landowners argued that the Government selected the existing alignment of the TEP lines, condemned additional adjacent lands, contracted with TEP to construct the project by building the 115-kv poles and circuits, and relocated TEP’s old 46-kv line to the new facility. This, the landowners contend, made TEP the Government’s agent for eminent domain purposes. The district court disagreed and held that evidence of the condition of condemned land is relevant and the court could not artificially increase or decrease the value of the condemnees’ land by ignoring a condition that the Government did not create. United States v. Virginia Elec. & Power Co., 365 U.S. 624, 81 S.Ct.

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109 F.3d 1493, 97 Daily Journal DAR 4443, 46 Fed. R. Serv. 1122, 97 Cal. Daily Op. Serv. 2515, 1997 U.S. App. LEXIS 6228, 1997 WL 152768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-059-acres-of-land-ca9-1997.