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Rockland Electric Co. v. Bolo Corp.

Decided: March 16, 1961.


Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d. Freund, J.A.D. (dissenting).


This is a condemnation proceeding. The plaintiff, a privately owned public utility, acting pursuant to statute, condemned an easement across the defendant corporation's 42-acre tract of unimproved land in the Borough of Montvale, Bergen County, for purposes of erecting and maintaining a high-tension electric transmission line on poles. The easement was for a 100-foot width, on 50 feet of which there was already an underground easement of the Tennessee Gas Transmission Company with gas piping installed therein.

The single expert witness for the defendant-owner of the property, William J. Schwenn, testified at the jury trial in the Law Division that the damage to the premises as the result of the taking was $26,100. The plaintiff produced two witnesses, one testifying that the value of the land taken was $3,800, and the other giving a valuation of $3,240. Both of these witnesses said that there was no severance damage to the remainder of the tract. Schwenn's estimate included an element for such severance damage. The jury returned a verdict of $16,467, on which judgment was entered.

On this appeal the plaintiff does not challenge the jury verdict, but only the ruling of the trial court sustaining the qualifications of Schwenn as an expert witness and the exclusion of certain questions addressed to the plaintiff's witness Slothus on redirect examination.

At the trial, defendant offered Schwenn as an expert witness on land values, and upon challenge of the witness by plaintiff, examined him on his qualifications before eliciting any testimony concerning value or damages. The witness stated he had been a real estate appraiser for 30 years, had appraised thousands of pieces of property for the government and private parties, and that his work had included other appraisals in the immediate area as well as the appraisal of the entire right of way of the Tennessee Gas Transmission line across the State, including the 50-foot easement taken by that company within the very subject property. He indicated familiarity with the physical characteristics, location and zoning of the property here involved.

When the witness was asked a direct question as to his valuation of the subject property as of September 1959, plaintiff objected that the witness had not been qualified "because he has not given any testimony as to comparable properties or shown he has any knowledge of the value of properties in the neighborhood of this property." To meet the objection defendant questioned the witness concerning "comparable values" in the area (both counsel were obviously referring to sales of comparable properties). Before the witness could answer, plaintiff again objected "unless he testifies to them of his own knowledge," "not from hearsay." The court overruled the objection, and the witness cited sales of three other properties in the general area. On cross-examination, limited to qualifications, Schwenn indicated his knowledge of one of the sales came from the purchaser, of another from an attorney in the transaction, and of the third "from the records." Upon renewal of objection to the witness's qualifications on the ground that he did not have first-hand knowledge of the sales of the properties sold and that they were not "comparable," the court overruled the objection and permitted the witness to testify.

The sole basis for the attack upon the trial court's ruling qualifying the witness is the asserted adverse holding in Essex County Park Comm. v. Brokaw , 107 N.J.L. 110

(E. & A. 1930), wherein four judges of the court dissented. In that case the court sustained the action of a trial judge in refusing to qualify a valuation witness whose only knowledge of value, so far as appears from the opinion, was sales information gleaned from others or from public records, rather than direct personal knowledge of such sales. The court said (at p. 112): "* * * the qualifying knowledge of comparable sales must be such as would be competent evidence if testified to by the proposed witness or, if not, must be substantiated by competent evidence of others before it can have the effect of qualifying the witness to speak as an expert." No authority for that proposition was cited by the court. Before considering the effect on that ruling of the 1931 statute (L. 1931, c. 229), now found in N.J.S. 2 A:83-1, or its intrinsic merit as a precedent, we observe that the case is not controlling here since considerably more was shown to qualify this witness than knowledge of sales of other property.

The witness had made "thousands" of appraisals professionally and had testified as an expert frequently (other appeals decided by this court include cases where this witness testified as a realty expert concerning Bergen County property in both tax and condemnation litigation; see, e.g., Jat Company, Inc. v. Division of Tax Appeals , 47 N.J. Super. 571, 577, 579 (App. Div. 1957), certification denied 27 N.J. 278 (1958); Village of Ridgewood v. Sreel Investment Corp. , 28 N.J. 121, 126 (1958); and the filed record of Tennessee Gas Transmission Co. v. Maze , 45 N.J. Super. 496 (App. Div. 1957)). His experience included appraisal of and testimony in court concerning a gas transmission easement across the very property here in question. From these facts alone the trial court in its sound discretion could have concluded that the witness was well qualified to have, and had, in fact, conducted all such studies of pertinent and relevant data as are customarily made by valuation experts, in arriving at his opinion of the value of the property involved in this case. He was thus affirmatively shown to have been possessed

of expert qualifications not manifest in the Brokaw opinion concerning the witness who was there held unqualified.

In this State, as generally, a witness may qualify as an expert by reason of study without practice or practice without study. 2 Wigmore on Evidence (3 d ed. 1940), § 555 et seq.; 3 Id. , § 712 et seq.; Wheeler & Wilson Mfg. Co. v. Buckhout , 60 N.J.L. 102, 105 (Sup. Ct. 1897); State v. Arthur , 70 N.J.L. 425, 427 (Sup. Ct. 1904); Fenias v. Reichenstein , 124 N.J.L. 196, 200 (Sup. Ct. 1940); cf. Sanzari v. Rosenfeld , 34 N.J. 128 (1961). Other jurisdictions hold that a witness may qualify as an expert by reason of training, experience or both, Carroll v. Magnolia Petroleum Company , 223 F.2d 657, 664 (5 Cir. 1955); or if he has the requisite knowledge, skill or training, Bratt v. Western Air Lines , 155 F.2d 850, 853, 166 A.L.R. 1061 (10 Cir. 1946), certiorari denied 329 U.S. 735, 67 S. Ct. 100, 91 L. Ed. 635 (1946); or if, because of special study or experience he possesses special skill or knowledge not common to the average man, Wilmington Housing Authority v. Harris , 8 Terry 469, 47 Del. 469, 93 A. 2 d 518, 522 (Super. Ct. 1952); Tifton Brick & Block Co. v. Meadow , 92 Ga. App. 328, 88 S.E. 2 d 569, 573 (Ct. App. 1955). Expertness may be acquired by occupational experience as well as by scientific study, Rogers on Expert Testimony (3 d ed. 1941), § 40, p. 69; Churbuck v. Union Railroad Co. , 380 Pa. 181, 110 A. 2 d 210, 213 (Sup. Ct. 1955); United States v. 3969.59 Acres of Land , 56 F. Supp. 831, 838 (D.C.D. Idaho 1944).

It is elementary that, within broad limits, the qualifications of an expert witness are for the discretionary determination of the trial court; an appellate court will not reverse if there is " any legal evidence" to support the trial court's action. Brown v. New Jersey Short Line R.R. Co. , 76 N.J.L. 795, 796 (E. & A. 1908) (emphasis by the court). There was clearly no mistaken discretion in the qualification of Schwenn as an expert by the trial court, notwithstanding the Brokaw case, supra. Cf. State, by State Highway Commissioner

v. Williams , 65 N.J. Super. 518 (App. Div. 1961). The witness showed exceptionally extensive study and experience in the field of land valuation, including the area surrounding the property in question. It is of note, incidentally, that plaintiff, while attacking the qualifications of Schwenn for use of alleged hearsay in his sales data, itself relied upon the testimony of a realty expert who supported his valuations by sales information supplied by others, and thus also without his "personal" knowledge.

Some comment concerning the applicability of N.J.S. 2 A:83-1, supra , is required. This statute, enacted not long after the decision of the Brokaw case, and undoubtedly because of it, provides in substance that any witness in a tax assessment or condemnation case shall be competent to testify as to sales of comparable property on the basis of information obtained from the owner, seller, purchaser, lessee or occupant, or from brokers who negotiated or who are familiar with or cognizant of such sales. However, it contains a proviso that it "shall not be construed to apply to any action or proceeding instituted by any individual or private corporation authorized to take property for public use where compensation must first be made to the owner thereof." Defendant invokes this statute as an additional sanction for the use of information of sales received from participants therein by the witness Schwenn, and urges that the proviso, if construed as applicable to a condemnation proceeding by such a corporation as this plaintiff, may be read out of the statute as unconstitutionally discriminatory, special and ...

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