DISSENTING OPINION
No. 4777.
Decided February 17, 1955.
OPINION
By SKEEL, J.(Dissenting)
This appeal, on questions of law, deals as has been stated by the majority opinion, with the value of the land of Ellis (designated in the proceedings as the Seventh Avenue tract) taken as part of the right of way for the Ohio Turnpike by the Ohio Turnpike Commission. The tract, in its entirety, consists of about fifty acres situated on the northwesterly side of the intersection of Detroit Avenue and the Anthony Wayne Trail. The Turnpike is taking approximately eight acres of the fifty-acre tract, running diagonally through the easterly, or perhaps more correctly described as the southeasterly end of the property with an extension of Devonshire Road which now dead ends on the northeast side of the Ellis property, through the
Ellis property to meet Crystal Road on the west.
The result of the Turnpike development leaves the Ellis Seventh Avenue property with 4-1/2 acres of land facing on Seventh Avenue, zoned for commercial use, with Seventh Avenue coming to a dead end at the Turnpike, where before it extended through to Detroit Road. The remaining property between the Turnpike and the 4-1/2 acre tract zoned for commercial purposes, is a triangular tract of 4-3/4 acres zoned for multiple family dwelling. To the north of the Turnpike running to the extension of Devonshire Road is a triangular piece of land consisting of a little less than three acres and the balance of the tract contains about 30 acres to the northwest of the said extension which is now zoned for multiple family dwellings. The southwesterly line of the property is the southwesterly line of the City of Toledo, except for a very small part at the southwesterly corner which is in the Village of Maumee.
The aerial views introduced in the record show the development around the property, both in Toledo and to the northeast, and in Lucas county to the southeast, and to the north, to be alloted and sparsely occupied with pm ail suburban homes and a considerable expanse of farm land with a shopping center at the corner of Detroit Road and the Anthony Wayne Trail, and an occasional multiple family dwelling.
*435The property was purchased by Ellis in 1948 for $20,000.00, or at the rate of about $400.00 an acre. The verdict of the jury as compensation for the eight acres taken was $12,265.00 or about $1533.00 an acre, and damage to the residue of $32,081.50 or about $750.00 an acre, leaving Ellis with 42 acres of land and a judgment for $44,346.00 or about $9000.00 more than the average of the value and damage testified to by the Commission’s expert witnesses.
This last fact is mentioned only because the defendant argues at length on the alleged fact that the verdict of the jury was less than that given as the opinion of damage by Turnpike Commission experts.
The majority opinion overrules all of the plaintiff’s assignments of errors except Nos. 2, 5 and 6. As to assignment of error No. 11 dealing with the conduct of a juror, it is stated that when considered with the other errors held prejudicial to the rights of Ellis it must be included as one of the grounds for reversal.
I am in full agreement with the reasons for overruling assignments of error Nos. 1, 3, 4 and 7 to 10 inclusive, as stated by the majority opinion. As to assignment of error No. 11, the circumstances being one not induced by either party and there being nó showing of prejudice to Ellis because of the juror’s statement, it should be overruled.
Error No. 2 is sustained by the majority opinion because of the rejection of exhibits Nos. 12 to 15 inclusive, said exhibits being plans of some 600 multiple family dwelling units which Ellis testified he was considering as an improvement for that part of the Seventh Avenue property zoned for multiple family use.
There is no dispute but that the court did admit into evidence exhibit No. 11, which was the plan of street layout and building lines for the proposed apartments. The only thing excluded was the floor and elevation plans and specifications. There is no dispute in the evidence but that a property like the Seventh Avenue property of Ellis could be adapted and was suitable for commercial use in part and in part for multiple family dwellings. The witnesses for the Commission and for Ellis were given full opportunity to give their opinions as to its availablility for such uses and its value when considered for such purposes, together with all other purposes to which it might be reasonably adapted.
The elevation and floor plans for a project that was drawn up but progressed no further for a period of five years before the taking, could add little for the jury’s consideration of the present value of the property, except, perhaps, that the proposed development was at least a little ahead of the then needs of the community. The question for the jury to decide was the value of the property taken and the damage to the residue when considered in the light of all uses for which it might be suitable, including the most valuable use to which, under all the surrounding circumstances, it was reasonably adapted at the time of the taking. Sowers v. Schaeffer, 155 Oh St 454.
The expert witnesses for both sides testified fully as to their opinions of the value of the land taken and the damage to the residue when considered for the best use for which they considered it was then reasonably available, there being some dispute only as to what such uses might be.
*436It was claimed by Ellis that the purpose for offering the plans was so that “the appraisers, the ones who will value the property, will be able to say they inspected the plans when they put a value on it. That is all we are asking.”
If this be the purpose for which the exhibits were offered, the court was clearly right in rejecting such evidence as attempting to fix a value for a specific use independent of all other uses for which the property is suitable.
Ellis, under this assignment of error, relies upon Cincinnati & Springfield Ry. Co. v. Longworth, 30 Oh St 108. The facts of the Longworth case are clearly distinguishable. There, while the plat of a subdivision through which plaintiff was condemning a right of way, had not been recorded, yet several lots had been sold according to the plat before the appropriation proceedings had been filed. Here, the exhibits attempted to spell out proposed buildings that may never be built. Their admission into evidence could be effective only in fixing a proposed single special specific use to which the property might be devoted. And in this connection, it must be remembered that the proposed street layout and building lines as exemplified by Exhibit 11 and upon which the buildings, as shown by the tendered Exhibits, were to be built, was received into evidence thus fully complying with the rule of the Longworth case. The court did not commit error in excluding exhibits 12 to 15 inclusive.
Error No. 5 is concerned with a financial statement claimed to have been created or authorized by Ellis in which he set forth, together with his other assets and liabilities, the cost of the Seventh Avenue property and his estimate of its value (which on this exhibit was the same as the cost) it being claimed that the exhibit was created in the summer of 1951. The evidence supports the claim that the exhibit was created to be exhibited to the attorney for Ellis wife as a basis for negotiating a propertly settlement between Ellis and his wife in a divorce case. The claim that the exhibit was a privileged communication is not, therefore, supported by the evidence. It was meant to be exhibited to the attorney for Ellis’ wife and a copy of it was produced from his files. The dispute as to its authenticity, that is that it was created by Ellis or at his direction, was a jury question.
The purpose of presenting the exhibit was two-fold. First, as a declaration against interest, and second, as it might affect the credibility of Ellis as a witness when testifying to the value of his property taken for turnpike purposes. The property has but one value, and if in fact Ellis attempted to claim a value for one purpose and a wholly different value of other purposes, it certainly was admissibile under the circumstances of this case.
Error No. 6 is concerned with the qualifications of “Schenck” one of the expert witnesses for the Commission, to testify as an expert witness. Said assignment of error, together with assignment of error No. 7 also deals with the manner in which the consideration received in sales of comparable property within a reasonable time prior to the taking of a part of Ellis’ property for turnpike purposes was obtained by this expert witness.
The record discloses that the witness had had many years experience in the field of real estate appraisals but had never before made a study of Toledo real estate values.
*437The jury was fully informed as to the witness’ background. His ability to be helpful in seeking out the value of the Ellis property taken and the damage to the residue was for the consideration of the jury. The objection presented in error No. 6 goes to the weight to be given to the testimony of the witness rather than its admissibility particularly where the court has a wide discretion in admitting opinion evidence.
While there is some authority which seems to reject the right of an expert witness in making a study of real estate values to examine the record of deeds in sales transactions of comparable property and to ascertain the consideration paid for the property from Federal Revenue stamps attached to the deed, yet there seems no justification for such a rule. What .more accurate information could thus be given as to the consideration for such transaction? In any event, whether the witness’ testimony is credible, is a jury question and the court is without authority to take the place of the jury and reject the witness’ opinion evidence under the circumstances here presented. Error No. 6 is not well taken.
This case is one in which the sole issue is the value of the Ellis property taken for turnpike purposes, and the damage to the residue because of such taking.
There is no question but that the jury’s verdict is supported by credible evidence, —evidence to which Ellis could not take a valid objection and which was as legally admissible as that which he himself presented. The difference between the vaiués claimed for the property involved; the part taken, and the damage to the residue by the contending parties,, is so far apart that the jury could find no middle ground but was in a position where in its best judgment the evidence of one side or the other would have to be the basis for its verdict.
The appraiser, Jack Haley, called by Mr. Ellis, appraised the 4-1/2 acres zoned for commercial purposes fronting on Seventh Avenue at $97,700.00, that is about $22,000.00 an acre, and the remaining land zoned for multiple family dwellings at $444,600.00, or at a rate of about $10,000 an acre (in this last tract there was about 1/10 of an acre in the commercial zone) making a total value for the 50-acre tract of $542,300.00.' The other two witnesses for Ellis are in substantial agreement with these figures and Ellis also accepted them as his opinion of the value of his land.
The Commission’s witnesses put a total value on the 50-acre tract of from $75,000.00 to $90,000.00, that is about $4000.00 an acre for the commercially zoned 4-1/2 acre tract and $1500.00 an acre for the remaining 45-1/2 acres. The Commission’s appraisers are in a measure, supported by actual sales transactions in this neighborhood and elsewhere in Toledo. Ellis purchased a 46-acre tract diagonally across Detroit Road, known as Storer Field, three years before the trial, for $870.00 an acre. It was then zoned in part for residence purposes but no difficulty was experienced in changing the zoning to whatever classification the owner desired, as is shown by the record.
The Town & Country Shopping Center directly across the highway from the Seventh Avenue property was purchased in two parcels, one being 4.7 acres for $4808.00 an acre, and 8.8 acres adjacent to it for about $6000.00 an acre.
*438The foregoing sales were in 1952, or less than one year from the date of this trial. Other sales between 1950 and 1953 of property zoned for residence use and multiple family dwellings and apartments in the Toledo area, developed that the highest price paid for acreage of this type was about $2,000.00. While sales as such, are not conclusive in fixing value because there are never two properties exactly alike, yet they are in fact a guide which an appraiser considers in determining what a willing seller would take when under no compulsion to sell, and a willing buyer not under the necessity of buying, would pay, or in other words, the appraiser’s judgment as to the true market value of the subject property.
The verdict of the jury shows that they gave greater credence to the evidence of the expert witnesses for the Commission than to those presented. by Ellis. This was a matter entirely within their province. The verdict also shows that if there was error in withholding elevation and floor plans of the proposed 600 multiple dwellings or in submitting the financial statement of Ellis or the evidence of Schenck, such error in no way influenced the verdict.
Sec. 2309.59 R. C., provides in part that where it is disclosed upon the record that substantial justice has- been done the party complaining, an appellate court shall not reverse a judgment because some error may have intervened. This section is applicable here.
The judgment of the trial court should be affirmed.