LONG BEACH CITY HIGH SCHOOL DISTRICT OF LOS ANGELES COUNTY, Respondent, v. IRWIN STEWART et al., Appellants, 30 Cal. 2d 763

SPENCE, J. In this proceeding to condemn land for a new junior high school, defendants Irwin Stewart, William Henry Stewart and M. Pearl Coyle have appealed. After a careful review of the entire record we have concluded that the trial court committed no reversible error, and that the judgment should therefore be affirmed. Irwin Stewart is the only defendant on whose behalf points have been presented in appellants’ brief and on oral argument. Therefore, for convenience, he will hereinafter be referred to as appellant.

The property condemned consists of five parcels, totaling 18.60 acres, on the outskirts of the city of Long Beach. Appellant, at the time proceedings were instituted, owned Parcel No. 1, consisting of 15.28 acres. The judgment appealed from awards him $20,000 for his property. The entire property was acquired by him in 1905 for the sum of $150 per acre, and he has resided on Parcel No. 1 and has used such parcel for farming operations continuously since that time. In 1906 he built thereon a frame dwelling house, a barn, storeroom, and shed.

Later a garage was added and a small repair shop, operated by appellant’s son, was housed behind the dwelling house in a structure measuring 28 feet by 32 feet. These improvements are of comparatively small value, the highest estimate made by any witness being $2,500, and that was by appellant’s own expert. Parcels Nos. 2, 3 and 4 are of lot size. Parcel No. 2 is improved with a stucco dwelling owned by defendants Luman P. Rose and Isabell M. Rose, husband and wife.

Parcels Nos. 3 and 4 are vacant lots, approximately 75 feet by 155 feet, which appellant had conveyed to his son, defendant William Henry Stewart, and to his daughter, defendant M. Pearl Coyle. Parcel No. 5 is a six-foot strip of land. Since appellant’s acquisition of the property in 1905, the surrounding tracts on three sides of the entire rectangular strip, including the long north and south sides, have been developed as residential subdivisions. On the fourth or west side is located the Union Pacific Railroad right of way.

There has been no industrial development in the vicinity and the only business development, consisting of stores and a beer parlor, is distant 800 feet to one-half mile from appellant’s parcel. In 1941, this property, together with the surrounding area, was zoned into a single family residence district. Thereafter the shop of appellant’s son was operated under a “non-conforming use permit.” The issues as to public necessity and suitability of the property for the junior high school were determined in respondent’s favor by the court sitting without a jury.

Thereafter a jury awarded appellant $20,000 as compensation for the taking of his property, and it is this latter portion of the judgment that he attacks upon the present appeal. Appellant contends: (1) the jury was erroneously instructed to limit their consideration of value to the use to which the property might be put under existing zoning ordinances ; (2) the testimony of appellant’s expert witness was erroneously limited to statements as to value of the land for residential purposes; and (3) the court erred in refusing to permit appellant to testify as to the reasons for his opinion as to value.

Appellant first claims that there was error in the instructions given to the jury. He says: “We can state briefly that the error was in the introduction of the idea of ‘availability’ as a basis for values.” In other words, appellant claims that in fixing the market value of the land, “adaptability” for any use should be considered by the jury, but that “availability” should not. Such is obviously not the law, for the jury should consider whether the land is or is not available for particular uses under existing zoning ordinances, as such “availability” does affect market value. Los Angeles City H. S. Dist. v.

Hyatt, 79 Cal.App. 270 [249 P. 221], was an action in eminent domain for the acquisition of property for school purposes. Upon appeal, it was insisted that the consideration of zoning restrictions to which the property in question was subject was “an unjust handicap to appellant in fixing the award of damages.” In denying the validity of the objection, the court stated on page 272: “There might be many considerations which if removed would enhance the value of real property, but when they exist they should be observed.

It was the duty of the trial court to consider all conditions having any bearing upon valuations.” City of Beverly Hills v. Anger, 127 Cal.App. 223 [15 P. 2d 867], was an action by plaintiff city to acquire land for public park purposes. Upon appeal, the chief attack was directed toward the admission in evidence of a zoning ordinance which restricted the use of the lots to construction of one-family dwelling houses.

It was asserted that “the city may not take advantage in condemnation proceedings of the decreased valuation of lots which is caused by the enacting of a zoning ordinance, but upon the contrary, that the market value should be estimated on the basis of any reasonable use to which the land may. be adapted.” (P. 226.) To the contrary, the court stated on pages 227 and 228 that the “enacting of a zoning ordinance which is adopted by a city in good faith and which actually does affect the market value of real property is nevertheless competent evidence in behalf of the city in a subsequent suit for condemnation of the property for public use.” The same principle was enunciated in City of Beverly Hills v.

Anger, 110 Cal.App. 626 [294 P. 476], where it was further indicated at pages 629 and 630 that if there is testimony that demonstrates with “plausibility” a prospective use for purposes other than that to which the land is restricted, the jury might be instructed that if it finds in accordance with defendants’ evidence, then “in view of the supposed changes of conditions, the city council in the exercise of its discretion might modify, as indicated, its zoning ordinance, and that in estimating the market value the jury might consider this possible change of the ordinance and the reasonable influence on market value, of such possibility.” In Central Pacific Railroad Co. v.

Pearson, 35 Cal. 247, this court gave consideration to the matter of “availability” when it was insisted that the value of certain land was enhanced by reason of potential wharf privileges. The court said at page 262: “The testimony in relation to the value of wharf privileges on the shore of the Sacramento river, where the tide ebbs and flows, given for the purpose of enhancing the value of some of the land sought to be appropriated, was also improperly received, for the obvious reason that the party claiming the compensation had no wharf franchise.

The mere fact that the party might at some future time obtain from the State a grant of a wharf franchise if allowed to remain the owner of the land, is altogether too remote and speculative to be taken into consideration. The question for the Commissioners to ascertain and settle was the present value of the land in its then condition, and not what it would be worth if something more should be annexed to it at some future time. (Gould v. The Hudson River Railroad Company, 6 N.Y. 522.) ” The following appears from the opinion of the Supreme Court of Washington in Bellingham Bay & B. C. R. Co. v.

Strand, 4 Wash. 311 [30 P. 144, at page 146] : “The contention is that all, or nearly all, of the witnesses that testified as to the value of the property taken were allowed by the court to include in their estimate of said value certain prospective rights to the lands below the line of ordinary high tide in the waters of Puget Sound. That the witnesses were allowed so to do is clear from the record, and we must therefore decide whether or not this prospective contingent right was a proper element to be taken into consideration in determining the value of the property taken. We think that it was not.

At the time these proceedings were instituted there was no law in force giving to the littoral proprietor any rights whatever in said tide lands, and under the decisions of this court in regard to the rights of littoral proprietors in such lands, the respondents had no valuable rights therein. It was left entirely to the legislature to say whether or not they should have any recognition as such littoral proprietors.

Under these circumstances, any value which was placed upon the property taken, by reason of any rights which might or might not be bestowed upon it by legislation, was too remote to constitute an element of value in proceedings of this kind; . . .” A similar holding by the same court is found in City of Seattle v. Byers, 54 Wash. 518 [103 P. 791]. This was a proceeding to condemn for a street, land that lay between a street and a cul-de-sac.

The opinion recites that appellants “attempted to show that, if the cul-de-sac known as ‘Seventh Avenue ’ should at some indefinite time in the future be vacated by the city, appellants’ land would become much more valuable, as they would then, by reason of their present ownership, secure additional property now included in the cul-de-sac.

This evidence was speculative, being based upon the remote possibility of a future occurrence, and could not properly be considered in estimating value.” The underlying principles upon which the authorities are based are summarized in Nichols on Eminent Domain, second edition, volume 1, as follows: “. . . the compensation awarded when land is taken by eminent domain is the market value of the land for any use to which it is adapted and for which it is available.” (§220, p. 671; emphasis added.) It is also said: “When however a particular use of property is prohibited or restricted by law, but there is a reasonable probability that the prohibition or restriction will be modified or removed in the near future, the effect of such probability upon the value of the property may be taken into consideration.” (§219, p. 669; emphasis added.) The rules thus enunciated appear to be common sense rules which should govern in fixing market value in cases involving zoning ordinances.

In other words, the general rule is that present market value must ordinarily be determined by consideration only of the uses for which the land “is adapted and for which it is available.” The exception to this general rule is that if the land is not presently available for a particular use by reason of a zoning ordinance or other restriction imposed by law, but the evidence tends to show a “reasonable probability” of a change “in the near future” in the zoning ordinance or other restriction, then the effect of such probability upon the minds of purchasers generally may be taken into consideration in fixing present market value.

We find no prejudicial error in the instructions to the jury in the instant case as they are in substantial accord with the foregoing rules. The jury was instructed on a number of occasions that in determining market value, it might take into consideration not only existing possible uses or wants of the community but such as might reasonably be expected in the immediate future.

Instruction No. 26 read: “You should estimate the compensation to the owner by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.

You should also give consideration to all pertinent circumstances including the location and surroundings of the property, its accessibility to roads and railroads, and other factors affecting the use or uses to which it could reasonably be put.” Instruction No. 28 informed the jury as follows: “You are instructed that in fixing the market value on July 21, 1944, of the property of defendants desired by the Long Beach City School District, you should consider all of the uses to which the property is suitable and available, having regard not only to the existing business or wants of the community, but also those that may reasonably be expected in the immediate future.” The jury was further told in Instruction No. 24 that “in making inquiry as to the purposes for which the property is suitable, you must not be concerned with the fact that the property has not previously been used for such purposes.” The only wording found in the instructions which might give appellant any semblance of cause for complaint is the last portion of Instruction No. 21.

That instruction read: “It is not proper to take into consideration speculative or conjectural uses or enterprises or the profits which might reasonably result therefrom. Such matters must be totally excluded from your considerations. You are not to consider uses which are remote or speculative only in their nature and you should not consider possible future uses under altered circumstances which may or may not arise.” As seen from a reading thereof, that instruction is addressed to speculative, conjectural, or remote uses.

The “future uses” which “may or may not arise,” when interpreted in context with the remainder of the instruction, appear to mean uses of a conjectural or speculative nature. Any misunderstanding by, or misleading of, the jury seems impossible in view of the explicit way in which it was instructed on other occasions that consideration could be given to such uses as might reasonably be expected.

Furthermore, in the present case, unlike the situation presented in the first Beverly Hills case (supra, 110 Cal.App. 626), there is nothing whatever in the record tending to show any “reasonable probability that the prohibition or restriction will be modified or removed in the near future.” Neither industry nor business has been invading the residential development in the involved area.

The zoning ordinance classifying the property as residential was enacted only three years before the condemnation proceedings were started, and it clearly appears that the ordinance is in line with the natural development in such area. Nor is there the slightest suggestion that the ordinance was enacted for the purpose of defeating appellant in his just claims for compensation or that it was not enacted in the utmost good faith.

In the words of the second Beverly Hills case (supra, 127 Cal.App. 223, 231), it would be “speculative to assume that a change in the provisions of the zoning ordinance is likely to occur.” Appellant next contends that the trial court erred in limiting the testimony of appellant’s expert witness. Appellant’s expert, a licensed real estate broker and appraiser, gave as his opinion on direct examination that the “fair market value” of Parcel No. 1, including the improvements, was $17,500. He valued the improvements at $2,500, leaving $15,000, or approximately $980 per acre, as the value of the land.

In making such estimate, he had “regard to the needs of the district existing at the time or which may reasonably exist in the immediate future,” and he took into consideration “all the factors which I believe would have any bearing on the value of the subject property.” He later testified on direct examination that the highest and best use for which the land is naturally adapted is “industrial purposes. ’ ’ The record shows the following further proceedings: “Q.

Taking this same tract you have testified to, involved in this case—these parcels involved in this case—what is your opinion of its value for an industrial purpose being higher than or less than you would for residential single family homes ? “A. Considerably higher. “Q. How much higher? “A. I don’t know. I haven’t given it sufficient study to determine its fair value for industrial purposes. I confined my opinion to its use as single family residential district, being a single family residential subdivision, on account of the ordinance which is now in force, which is restricted to that use. “Q. Yes. “A.

I would say to be ultra conservative, at least double the amount. “[By respondent’s attorney] Just a minute. I object to any statement of value which is assumed to be upon property if it should be considered from the standpoint of an industrial site. Certainly he cannot make any statement as to the exact value for any such purpose if he has given it no study. “The Court : I will sustain the objection." It will thus be noted that the witness was being interrogated concerning the value of the land in terms of money “for an industrial purpose.” Such evidence was clearly inadmissible.

As was said in Sacramento Southern Railroad Co. v.

Heilbron, 156 Cal. 408, at page 412 [104 P. 979] : “It is seen, therefore, that this court by its latest utterances has definitively aligned itself with the great majority of the courts in holding that damages must be measured by the market value of the land at the time it is taken, that the test is not the value for a special purpose, but the fair market value of the land in view of all the purposes to which it is naturally adapted; that therefore while evidence that it is ‘valuable’ for this or that or another purpose may always be given and should be freely received, the value in terms of money, the price, which one or another witness may think the land would bring for this or that or the other specific purpose is not admissible as an element in determining that market value.

For such evidence opens wide the door to unlimited vagaries and speculations concerning problematical prices which might under possible contingencies be paid for the land, and distracts the mind of the jury from the single question—that of market value—the highest sum which the property is worth to persons generally, purchasing in the open market in consideration of the land’s adaptability for any proven use.” (See, also, Joint Highway Dist. No. 9 v.

Ocean Shore Railroad Co., 128 Cal.App. 743, 755 [18 P.2d 413].) In Lewis on Eminent Domain, third Edition, volume 2, it is said: “. . . the proper inquiry is, not what is the value of the property for the particular use, but what is it worth in the market, in view of its adaptation for that and other uses.” (§706, p. ,1233.) Nevertheless, before objection was made, appellant’s expert had already testified that “its value for an industrial purpose” was at least double the amount to which he had previously testified as its “fair market value”; and this despite the fact that he had apparently believed such consideration to be of so little importance in determining “fair market value” that he had not “given it sufficient study to determine its fair value for industrial purposes. ’ ’ That testimony of value for a particular use was not stricken, and its presence in the record probably accounts for the jury’s action in awarding to appellant the sum of $20,000, which was $2,500 in excess of the amount declared by appellant’s expert to be the “fair market value.” Regardless of the existence of any zoning ordinance prohibiting the use of the land for industrial purposes, no claim of error could be successfully predicated upon any ruling which allegedly excluded evidence of value in terms of money for any particular use.

Appellant’s final contention is that the trial court erred in not permitting appellant to give his reasons for his opinion as to market value. Appellant gave his opinion that his land was worth $5,000 per acre. His counsel then said: “Now, your Honor, I don’t want him to answer this, but I want this for the record. What do you base this upon?” Objection was made that this was not a proper question on direct examination, and the trial court sustained the objection. During the discussion, appellant’s counsel said: “Í guess that’s right.

That is all.” Appellant, by virtue of ownership and residence on his property for a number of years, qualified as a person entitled to express an opinion as to its value. (Spring Valley Water Works v. Drinkhouse, 92 Cal. 528, 535 [28 P. 681]; LeBrun v. Richards, 210 Cal. 308, 319 [291 P. 825, 72 A.L.R. 336].) Appellant contends that he not only was entitled to testify as to value but that he was an “expert witness” within the meaning of

section 1872 of the Code of Civil Procedure, which, since 1937, provides: “Whenever an expert witness gives his opinion, he may, upon direct examination, be asked to state the reasons for such opinion, and he may be fully cross-examined thereon by opposing counsel.” We do not believe that it is necessary to determine whether appellant was technically an “expert witness” within the meaning of said section, for in any event we are of the opinion that the trial court erred in sustaining the objection.

It is a general rule that an opinion is worth no more than the reasons upon which it is based. (In re Redfield, 116 Cal. 637 [48 P. 794]; Eisenmayer v. Leonardt, 148 Cal. 596 [84 P. 43]; Winthrop v. Industrial Acc. Com., 213 Cal. 351 [2 P.2d 142]; Estate of Finkler, 3 Cal.2d 584 [46 P.2d 149]; Estate of Wright, 7 Cal.2d 348 [60 P.2d 434] ; Messner v. Board of Dental Examiners, 87 Cal.App. 199 [262 P. 58]; American Trust Co. v. Dixon, 26 Cal.App.2d 426 [78 P.2d 449]; Mark v. Industrial Acc. Com., 29 Cal.App.2d 495 [84 P.2d 1071]; Estate of Buthmann, 55 Cal.App.2d 585 [131 P.2d 7]; 32 C.J.S.

Evidence, § 567, p. 380.) It has long been the rule in will contests that nonexpert witnesses may give their opinions on the issue of competency, but it has been consistently held that “it is not the mere opinions which are of importance but the reasons given in support of such opinions.” (See Estate of Buthmann, supra, 55 Cal.App.2d 585, 591, and cases there cited.) While there are circumstances in which an opinion, given without a statement of reasons, may be properly considered by the trier of the facts (Lumbermen’s Mutual Casualty Co. v. Industrial Acc.

Com., 29 Cal.2d 492, 500 [175 P.2d 823]), the weight to be ordinarily given to such opinions depends entirely upon the reasons given in support thereof. Accordingly, we hold that appellant should have been permitted to state the reasons for his opinion on market value. there is any language in County of Los Angeles v. Signal Realty Co., 86 Cal.App. 704 [261 P. 536], which would tend to indicate that an owner of property cannot give the reasons upon which his opinion as to market value is based, such language cannot be approved.

There now remains the question of whether the error of the trial court in excluding evidence of appellant’s reasons for his opinion requires a reversal of the judgment. This question must be determined in the light of the entire record. Appellant concedes that his estimate of $5,000 per acre “was greatly in excess of prices quoted by other witnesses and standing by itself appears ridiculous. . . .” The record bears out this statement. Expert witnesses, whose qualifications are conceded by all, were produced by both parties.

These experts were asked to give their estimates of the “market value” of appellant’s land and not a single estimate of the “market value” given by any expert, including appellant’s own expert, was in excess of approximately $980 per acre. In testing the opinions of these experts on cross-examination, the witnesses were examined at length concerning sales in the vicinity. This evidence covered numerous sales made both before and after the enactment in 1941 of the ordinance zoning that area into a single family residence district.

This evidence showed that the property in the area had sold at prices ranging from $600 to $700 per acre, and there was no evidence of any sale at any time of land in that general area at a price in excess of $700 per acre. Appellant’s estimate of $5,000 per acre as the market value of the land was therefore more than five times the market value per acre given by his own expert and was more than seven times the amount per acre which the evidence showed that any other land in the vicinity had ever brought.

When the objection was sustained to the question under consideration, appellant made no offer of proof and there is not the slightest indication in the record or in the briefs concerning the nature of the testimony which appellant would have given in reply to the question. It can only be surmised that appellant was basing his estimate upon his speculation that the zoning ordinance might be modified at some future time to permit the use of the property for industrial purposes, and that the property might under those circumstances have greatly increased market value.

As above indicated, there is nothing in the record to suggest that there is any reasonable probability of such modification in the near future or that any speculative possibility of such modification has had any influence whatever upon the market value of the property.

As appellant’s estimate of market value was entirely out of harmony with all other evidence in the record, including that given by his own expert, and as appellant has not suggested either in the trial court or in this court any rational basis for such estimate, it seems apparent that such estimate was nothing more than wishful guessing on the part of an interested owner. It further appears that in the event of another trial, it would be highly probable that appellant would be awarded less, rather than more, than the $20,000 awarded by the judgment from which this appeal was taken.

Under these circumstances, we cannot reach the conclusion that the error of the trial court in excluding the evidence in question was prejudicial or “that the error complained of has resulted in a miscarriage of justice.” (Const., art. VI, §4½.) The judgment is affirmed. Gibson, C. J., Edmonds, J., and Traynor, J., concurred.