(dissenting).
I dissent, believing that this case is not materially different than the one we decided about a year ago1 where we reversed a jury verdict for $150,000. I think the language of Mr. Justice Worth-en in that case is equally applicable here, when he said that:
“It is apparent from reading the testimony of defendant and his three witnesses who testified as to the value of the property that they and each of them based their valuation on the aggregate total of values placed on the premises in part by other experts who each appraised a segment of the property and/or its operations,”
and that
“A reading of the testimony of defendants’ experts shows with abundant clearness that they arrived at their determination of the value of the lands * * * by multiplying the estimate of another expert (Engineer Richards) as to the tons of sand and gravel in place by the estimated value per ton.”
So far as I can detect, the main opinion here recites and the record reflects no new, different and controlling material facts n0(. found in our first opinion or not germane thereto. Engineer Richards’ testimony was identical in both trials, having been read ^ ^ record in the second trial. Defendant and all of his experts at the second trial, all of whom testified at the first trial except one, also used Richards’ estimate and data in their computations. Defendant Noble testified for the second time that in his opinion the property was worth $300,000, and the three experts who testified at the first trial gave the same or almost identical figures at the second trial, the amounts testified to at the first being $270,000, $270,768 and a figure between $250,000-275,000. At the second trial the figures were from $270,-000-275,000, $275,000 and from $260,000-270,000, with the fourth expert estimating the value at $291,000. All four used Richards’ data as mentioned, a circumstance that this court specifically leaned on to conclude that the witnesses had arrived at their figures by multiplying Richards’ tonnages by the sales price per ton at time of condemnation, less expenses. The almost identical average of estimates of defendants’ experts at the first trial, $269,-*412423 and at the second trial, $270,833, hardly seems likely to have been arrived at except by using the same system of calculation, and there is nothing in the main opinion or in the record of the second trial indicating that the experts arrived at their estimates in any other manner. Their consistency does not seem to be shared by us in our diametrically opposed decisions. It seems to me that either we were wrong in the first case or are wrong in the instant case.
A casual reading of the record shows that the defendants went to great lengths in parading quantity of material and tonnage sales price before the jury, with the implication that the fair market value of the property was made up at least partly by future profits which the owner would lose by condemnation, — a factor which we have said is not includable within the term fair market value.2 The most substantial portion of defendants’ case in chief was devoted thereto, as was counsel’s argument to the jury. Nowhere was it shown that any willing buyer would have paid Noble anywhere near $300,000, his figure, or $175,000, the figure of the jury, which the trial court thought to be $35,000 in excess of what a willing buyer would pay. It is also interesting to note that the defendant became a willing seller of the property at the $140,000 to which the court reduced the verdict.
The main opinion suggests that the plaintiff on cross-examination relied on the testimony of Noble, which was substantially the same in the first trial, to establish its contention. I cannot subscribe to that suggestion, and this court made no suggestion in the first trial. From the-record it would appear that the cross-examination was an attempt to impeach and discredit the somewhat fabulous claim of Noble that the property had a $300,000 fair market value, which turned out to- be a figure that the jury was not willing to buy in excess of $175,000, and which the trial court was not willing to buy in excess of $140,000, justifying such impeachment and discrediting of his inflated opinion. I am of the opinion from reading the cross-examination that Noble did use the multiplication table in arriving at his figure, and there is no magic or binding force to his rather nebulous testimony at the first trial that he could have sold the gravel for about $700,-000 within 15 years, only to assert at the second trial that he could have done the same thing within three years. Such testimony certainly points to a consideration of future profits in calculating fair market value, particularly in view of the apparent false premise, assumption and speculation that nothing would happen within 15 years *413either as to demand for the material or the going price thereof per ton.
The figures of defendants’ experts, averaging about $270,000 as the fair market value of the property, as compared with the figures of plaintiff’s experts that averaged about $65,000, with the terrific differential of $205,000, and with the consistency of figures found on both sides, suggest a possible need to appraise appraising itself to determine how such an unrealistic disparity could exist in view of the fact that the definition of “fair market value” can be found in the first chapters of any primer on appraising.
It is cases like this, where the disparity mentioned is unexplainable and where appellate tribunals reverse not only juries hut themselves on what I believe are substantially the same facts, that makes for disestablishment in the layman’s mind of an erstwhile respect for courts ancCffheir pronouncements.
It seems to me that the quoted language of Mr. Justice Worthen mentioned at the outset of this dissent, and as reported in the first case, to the effect that it was apparent that defendant and his experts based their valuations on an aggregate of values arrived at by other experts appraising segments of the premises, is as apropos here as it was there.
The case should be reversed again.
. State By and Through Road Commission v. Noble, 1958, 6 Utah 2d 40, 305 P.2d 495, 497.
. State v. Tedesco, 1956, 4 Utah 2d 248, 291 P.2d 1028.