City of Pleasant Hill v. First Baptist Church (1 Cal. App. 3d 384, 1969)

Opinion

SIMS, J.

Plaintiff city has appealed from a condemnation judgment entered on a jury verdict awarding the defendant church $86,000, consisting of $39,000 for property condemned for a city street, and $47,000 for damages to the remainder of the property. The city contends that the trial court committed prejudicial error in its rulings upon the admissibility of certain evidence; that the trial court erred in refusing the city’s offer of proof for the purpose of impeachment upon the issue of severance damage; that the severance damage award is excessive and not supported by any evidence; that the city was denied a fair trial and due process of law because of jury misconduct and irregularity in the jury proceedings; and that the city was denied a fair trial because of the misconduct of the church’s counsel. An examination of these contentions reveals no prejudicial error. The judgment must be affirmed.

Basic Facts and Issues

In its before condition the property consisted of 70,809 square feet. It may be visualized as the letter “L” with the horizontal base running 422.20 feet from south (left) to north (right), where it abutted upon an established thoroughfare. The vertical part of the “L” rested on the southerly 270 feet of the base and extended westerly (upward) approximately 225 or 226 feet to form almost a square. The horizontal part of the “L” had a frontage from east (bottom) to west (top) of 65 feet on the established thoroughfare, and on the east (top) ran southerly, at a uniform width of 65 feet, 150.34 feet to a point where it joined the main part of the property. ¡

The property condemned consisted of the entire northerly (right) extension of the “L” approximately 65 feet by 150 feet, and a 60-foot strip off the easterly side (bottom) of the remainder of the property, for a total of 26,068 square feet as computed by the city’s witness. This property included a graveled driveway which led in from the thoroughfare on the north to a parking area on property not condemned, and also a driveway from the parking area to the end of a street which abutted on the base of the property before the take, about 35 feet easterly of the southeast corner.

After the condemnation the church was left with 44,847 square feet with a frontage of 270 feet on the newly constructed street, which was designed and constructed as a north-south thoroughfare. The property had been first improved with one structure in 1954, and additions to this structure were constructed in 1956. At the time of the condemnation these improvements, consisting of approximately 2,400 square feet of enclosed space and 580 square feet of porch, housed a kitchen, nursery and Sunday School rooms. Immediately adjacent was a chapel, Sanctuary or auditorium with office and extra rooms which had been constructed in 1963, and enclosed an additional approximately 2,625 square feet. These improvements, together with landscaping and paving for the parking area and walkways, remained after the condemnation.

The principal issue at the trial was whether the church had suffered any severance damages. All witnesses who testified, whether concerning suitable use, or value or both, agreed that before the taking the highest and best use of the property was for church purposes: All those appraising the property approached the question of value by appraising the land on the basis of comparable sales, and the improvements on the basis of reconstruction cost, some with, and some without an allowance for depreciation.

The pastor of the church, two members of its congregation who were active in affairs of the church, and two independent clergymen, a rabbi and a Presbyterian minister, testified to the effect that after the taking the property was valueless for church purposes, and that the congregation would have to find a new site. Two appraisers echoed these views and, with the pastor and the minister, gave estimates of severance damage predicated upon the loss of the value of the improvements.

For the city, three ministers, including a former pastor of the defendant church, and two architects, one of whom had laid out a plan of development for the entire property which the church - claimed represented its needs, testified that the remaining property was still suitable for church purposes after the taking and could be adapted to the needs contemplated by the church. Two appraisers agreed with this conclusion and testified there were no severance damages. A third, who had originally appraised the property for the church, was called by the city as a witness and testified that the buildings would be useful for church purposes after the taking. Nevertheless, he opined that the remaining property had suffered severance damages of $22,500. Neither party explored the basis on which this witness predicated his estimate of severance damage.

The foregoing testimony is reviewed in more detail below. It, together with testimony as to land values, is summarized in Appendix A annexed hereto and made a part of this opinion. Despite substantial evidence to the contrary, 11 jurors and the trial court in denying a motion for new trial, approved the theory inherent in the testimony of the witnesses produced by the church. With the foregoing background the city’s contentions can be examined in the light of the relevant evidence.

Plan and Model of Church’s Development Plan

The church produced a plan proposed in 1957, and a large scale model which portrayed graphically and in three dimensions .the utilization of the whole of the original property for the development of improvements for church purposes.

At the outset the city indicated its objection to the use of this evidence. It moved the court to exclude the model from the view of the jury. This motion was denied on the theory that the model, without removable structures which represented proposed as distinguished from existing structures, correctly depicted the appearance of the property before the taking, and showed the portion condemned.

Subsequently, Mr. Norried, the head usher and former member of the trustee’s board and board of deacons of the church, testified that the graphic plan represented a master plan prepared by architect Dennis and accepted by the board of trustees of the church in 1957; that because of lack of money the sanctuary was not built according to the master plan. (It is smaller and was located more easterly to abut on and furnish convenient access and joint use with the previously constructed assembly hall.) This witness identified the removable structures which accompanied the model in relation to proposed structures on the graphic plan, and placed them on the model. The city’s objection to the introduction in evidence of the graphic plan and the three dimensional model with the proposed structures was overruled.

The proposition upon which the city relies for the exclusion of the foregoing evidence, and the grounds the church asserted for its admission are both found in the following passage from Sacramento etc. R. R. Co. v. Heilbron (1909) 156 Cal. 408 [104 P. 979]: “. . . 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 jiot admissible as an element in detenmining that market value. For súch 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.” (156 Cal. at p. 412. See also People v. Chevalier (1959) 52 Cal.2d 299, 309 [340 P.2d 598]; People v. LaMacchia (1953) 41 Cal.2d 738, 751 [264 P.2d 15]; Long Beach City High School Dist. v. Stewart (1947) 30 Cal.2d 763, 771-772 [185 P.2d 585,173 A.L.R. 249]; City of Oakland v. Pacific Coast Lbr. etc. Co. (1915) 171 Cal. 392, 399-400 [153 P. 705]; San Bernardino County Flood Control Dist. v. Sweet (1967) 255 Cal.App.2d 889, 899 [63 Cal.Rptr. 640]; People ex rel. Dept. Public Works v. Silveira (1965) 236 Cal.App.2d 604, 627 [46 Cal.Rptr. 260]; People ex rel. Dept. of Public Works v. Alexander (1963) 212 Cal.App.2d 84, 93-94 [27 Cal.Rptr. 720]; People ex rel. State Park Com. v. Johnson (1962) 203 Cal.App.2d 712, 716-717 [22 Cal.Rptr. 149]; Buena Park School Dist. v. Metrim Corp. (1959) 176 Cal.App.2d 255, 260-261 [1 Cal.Rptr. 250]; Laguna Salada etc. Dist. v. Pacific Dev. Co. (1953) 119 Cal.App.2d 470, 476 [259 P.2d 498]; City of Daly City v. Smith (1952) 110 Cal.App.2d 524; 531-532 [243 P.2d 46]; East Bay Municipal Utility Dist. v. Kieffer (1929) 99 Cal.App.240, 250-251 [278 P. 476, 279 P. 178]; City of Stockton v. Vote (1926) 76 Cal.App. 369, 403 [244 P. 609].)

The city relies upon that portion of the opinion in People v. Chevalier, supra, which states: “Defendants finally contend that the court erred in denying admission of an architect’s sketch showing a proposed improvement of their land. Defendants sought to show thereby that their property in one single piece, without the street bisection, would be suitable and valuable for building a motel and restaurant project, and that the severance ruined the prospect of such a development. It is true that evidence of a proposed use may be relevant, not to enhance damages but to show that the proposed use is feasible and, as such, might enter into a determination of the market value. (Laguna Salada etc. Dist. v. Pacific Dev. Co., 119 Cal.App.2d 470, 476 . . .) However, all the experts agreed that the land was suitable and valuable, before but not after the condemnation, for the building of a motel and restaurant project, and that this would have been a feasible plan for the use of the property. It therefore appears that the sketch of a specific plan or development could have no other purpose than to attempt to enhance damages, and its rejection was proper. (People v. LaMacchia, 41 Cal.2d 738, 751 . . .; City of Los Angeles v. Kerckhoff-Cuzner Mill & Lbr. Co., 15 Cal.App. 676, 677-678 . . .)” (52 Cal.2d at p. 309. See in addition to the cases last cited, San Bernardino County Flood Control Dist. v. Sweet, supra, 255 Cal.App.2d 889, 901; People ex rel. Dept. of Public Works v. Alexander, supra, 212 Cal.App.2d 84, 93-94 and 99-100; People ex rel. State Park Com. v. Johnson, supra, 203 Cal.App.2d 712, 716-718; Laguna Salada etc. Dist. v. pacific Dev. Co., supra, 119 Cal.App.2d 470, 476; and San Joaquin etc. Canal & Irr. Co. v. Stevinson (1923) 63 Cal.App. 767, 769-772 [220 P. 427].)

On the other hand, the church points out that People v. Chevalier, supra, recognizes “. . . evidence of a proposed use may be relevant ... to show that the proposed use is feasible and, as such, might enter into a determination of the market value.” (52 Cal.2d at p. 309. See also People v. La Macchia, supra, 41 Cal.2d 738, 751; City of Santa Ana v. Harlin (1893) 99 Cal. 538, 543-544 [34P. 224]; Spring Valley Water Works v. Drinkhouse (1891) 92 Cal. 528, 532-534 [28 P. 681]; San Bernardino County Flood Control Dist. v. Sweet, supra, 255 Cal.App.2d 889, 900 and 902; Buena Park School Dist. v. Metrim Corp., supra, 176 Cal.App.2d 255, 262-263; City of Daly City v. Smith (1952) 110 Cal.App.2d 524, 532-533 [243 P.2d 46]; City of Stockton v. Vote, supra, 76 Cal.App.369, 405.)

In this case the plan and model were illustrative of the conceded fact that the property before the taking was suitable and adaptable for the uses of a growing church. Since all concerned agreed that this was the highest and best use of the property as it was then constituted, no prejudice, resulted on that phase of the case. The jurors observed the actual improvements on the premises, and it is clear that in their award for the value of the property taken they did not include the value of any phantom improvements.

The city asserts, “It is an indisputable fact that the severance damage testimony is based entirely and exclusively upon the alleged inability of the church to follow the layout on their 1957 drawing.” From this predicate it concludes, “The injection into the case of the proposed building layout and the argument that there was severance damage because the so-called master plan could not be followed permitted the jury to indulge in the wildest speculation and conjecture without limitation, qualification, or guidance from the trial court.” Under these circumstances, the prejudice inherent in the possibility that the jurors misunderstood the use of the evidence would require a reversal. (People ex rel. State Park Com. v. Johnson, supra, 203 Cal.App.2d 712, 718.) The testimony, however, fails to sustain the hypothesis on which the city bases its conclusion.

Mr. Norried, a member of the church since 1955, testified as to the construction which had been accomplished by the church, the nature and number of its congregation, and its activities, and identified the plan and model. He testified that in the before condition the property was a good site to use for church purposes because it was accessible, it was back off the street and free from traffic noises and hazards, and it had sufficient room for outdoor activities and for future expansion with other buildings. He stated that the church was crowded on the remaining property, and that in the absence of the taking, it definitely would have gone forward and built further structures in keeping with the master plan. He stated that in his judgment the church was going to have to move; that since the street had been completed it was difficult to carry on services there without interruption because of the traffic; and that the church had lost its privacy.

Mr. Wedell the Sunday School superintendent testified that the Sunday School classes were full to capacity, and that some classes were using facilities which were not designed for or suitable for such use. He acknowledged his familiarity with the plan and model, and by reference to the model he explained the need for outdoor and indoor facilities for three different age groups. He concluded that if the church could not have the proposed buildings it could not grow, and that it would be necessary to move to a new site.

Rabbi Robbins testified that a location with accessibility and privacy was important to a church; that the property after the taking and construction of the new street was of limited value for church purposes, and was not in a good location; and that in the before condition the premises, although small, were well located and adequate to carry out the purposes depicted in the master plan of the church which he had examined. He concluded that the property in its after condition had no value for church purposes.

Reverend Kinsey testified that the church in its before condition was in a good location and met criteria of visibility and accessibility; that the lot size was minimal but adequate for church development; and that on viewing the property he formed a judgment that in its original condition its use could be planned through the development of a multiple use facility expanding into further single use facilities. He stated that it was generally recognized that there is -a broadened concept of the church program calling for more and more use of building facilities, which he described; that in its after condition the property was inadequate for the church because it had been cut off from any future growth or development; and that in his opinion the only solution was for the church to move. He acknowledged on cross-examination that he had examined the church’s 1957 plan, and he assumed, that since they had worked with an architect, it was adequate to carry out the church’s concept of what they were building for. When asked to explain why the church structures were not usable for church purposes, he answered, “I think they are useable in a limited sense but for a congregation that anticipates any development whatever they are frustrated or pegged to their present level and not able to do any real expansion or growth, either in numbers or terms of their available services to the community.” He indicated that the inability to develop the property according to the church’s plan for ultimate development would deprive it of the means to perform the functions contemplated and to meet its projected program, and thereby render the church unsuccessful in the eyes of its members and the community at large.

The pastor testified that before the taking the church was located on one of the most desirable sites one could find because it was secluded from traffic, yet exposed, visible and accessible; that the site was small but adequate for the tasks the church had to perform in a growth situation. He stated that after the taking the traffic noises on the newly constructed adjacent street were a source of distraction; that in his opinion the use of the spacé available before condemnation had been properly planned; and that the church should move because it needed more space than was available after condemnation in order to grow with the proper facilities to perform and carry on its ministry. On cross-examination he narrated the background of the 1957 “master plan” as it had been explained to him after he came to the church, over one year after the condemnation action had been filed. He stated that it had been held up as a plan which the church had intended to follow, if the road had not been constructed, and that the plan appeared to meet the needs of the congregation as projected into a future time for which it was drawn. Near the end of the witness’ cross-examination the following is reported: “Q. Now as I understand it is your feeling that the loss of value of the church, of the improvements, is based upon the 1957 sketch plan, your position being that the buildings can no longer be used as a church, according to the master plan, is that right? A. For the purposes of the church, yes, sir, that’s right.”

Witness Wallace, a real estate broker and appraiser, testified that the property in its condition before the taking was in an excellent location for church purposes; that it was well shaped because it did not have exterior circulation which would interrupt or take up unnecessary space; that it was removed from a standpoint of being quiet and yet close to a main street; that it permitted adequate parking without interference with the determined uses of the rest of the parcel as indicated on the plan; and that the layout seemed very good for expansion in the future for the objectives and purposes of the church people. He stated that there was no market for the property as church property because there was still land available in the county for the development of church sites, and. churches were planning to accommodate the ultimate plans [szc, needs] of their congregations. In the course of his investigation he talked with Rabbi Robbins, Reverend Kinsey, Pastor Myrant, Mr. Norried, and the pastor of another church, and he listed the Pleasant Hill churches with their lot sizes. He felt the church structure itself was no longer valuable because the area remaining was not sufficient for the church to carry out its plans for expansion for its congregation. According to this witness there should be no adjustment to the severance damages for salvage value (see 4 Nichols, op.cit., § 14.23, pp. 528-542, particularly p. 542), because the salvage value of the improvements was about equal to the cost of demolition.

Witness Paul Johnson, also a real estate broker, testified that for three or four years he had been engaged in locating properties for future growth in Alameda and Contra Costa Counties for the Oakland Diocese of the Catholic Church. In his opinion the location of the church property furnished seclusion and accessibility, and although the site was not actually large it was adequate for that church at the time of the taking. He was familiar with the layout of the “master plan.” He had discussed it with the pastor and had seen the model. He stated that in his judgment “this growing church cannot stay in this particular site” after the taking. He noted that after the taking the church, which had a very private useful access and a sedate setting, was located on a very busy major thoroughfare and semi-speedway. He added, “I think with the growth of the master plan as they have projected and have visibly in front of me now just does not allow them to build out on the remaining land that they have. They have crowded classroom conditions on the site. The parish, I believe you call it, is growing and new members coming in and they don’t have full facilities to take care of them.” He opined that in the after condition the existing improvements could not be resold for church purposes, and he concluded that the church suffered severance damages in a sum equal to the replacement costs of those improvements. On cross-examination the witness, after reiterating that the taking rendered the property nonusable for this particular church, added: “For any church needs I would say it is nil. . . we have a similar situation. They have a true need for growth in the area....”

In the face of substantial evidence to the contrary, the church persuaded the jury to deduce from the foregoing testimony that the taking destroyed the usability of the remaining premises for church purposes. The testimony set forth above, which was elicited without objection, embodies three concepts: first, that the property could no longer be used by this church because the physical space on which it planned to erect specific physical structures had been taken; second, that the property could no longer be used by this church because the physical space necessary to carry out the planned program and activities and growth of this church, and to construct the physical structures necessary for those purposes was no longer available; and third, that the property could no longer be used by any church because the physical space necessary to carry out the program and activities generally considered necessary for any growing church, was no longer available.

Any attempt to establish damages on the basis of the first concept directly conflicts with the precedents cited above upon which the city relies. Mere frustration of the owner’s plans is not generally compensable, and no reason suggests itself why a different rule should apply to so-called service property without a specific showing to sustain a finding the property has lost its general adaptability for the selected use, be it church, school, or other institution. The general rule, with respect to property held for projected development has been phrased as follows: “This evidence was not admissible however, for the purpose of showing special damage sustained by the company as the result of the frustration of its plans for development; and if the evidence is admitted in the further trial of the case, this should be made clear by proper instructions. The measure of damages which the company is entitled to recover is the value of the land taken plus the depreciation in the market value of the remainder due to the use made of the part taken, not any special damage it may have suffered through frustration of its plans. [Citations.]” (West Virginia Pulp & Paper Co. v. United States (4th Cir. 1952) 200 F.2d 100, 104.)

Evidence was clearly admissible under the third concept because if the property had lost its utility for general church purposes, the church involved not only suffered specific direct damage, but was indirectly damaged with respect to any market value of the property because of the loss of whatever potential buyers might possibly have been found for the special church use. “Such factors as the size and shape of the remainder, loss of highway frontage [here gain of highway frontage without appreciable gain in accessibility, and with loss of privacy and seclusion], and impairment of the use of the property by showing the uses to which the property was adaptable prior to the taking and the limited uses to which the property may be devoted thereafter may properly be considered in determining severance damage. [Citations.]” (San Bernardino County Flood Control Dist. v. Sweet, supra, 255 Cal.App.2d 889, 902. See also People ex rel. Dept. Public Works v. Lipari (1963) 213 Cal.App.2d 485, 491-493 [28 Cal.Rptr. 808]; West Virginia Pulp & Paper Co. v. United States, supra, 200 F.2d 100, 104; Producers’ Wood Preserving Co. v. Commissioners of Sewerage (1928) 227 Ky. 159, 167-168 [12 S.W.2d 292, 295-296]; and Board of Education v. Kanawha & M. R. Co. (1897) 44 W.Va. 71, 73-75 [29 S.E. 503, 504].)

The second concept lies between the other two. Reflection indicates that if the special user is to be protected where the whole of the property is taken (see fn. 1, above), it is entitled to similar protection where the taking renders the property unusable for the purposes of that special user. If a school serving 200 pupils were left without a playground because the property was taken for a higher public use, the proposition that it had lost its utility for school purposes would not immediately be answered by showing that half the school buildings could be torn down so as to furnish adequate facilities for 100 pupils. (Cf. Board of Education v. Kanawha & M. R. Co., supra, 44 W.Va. 71, 73-75 [29 S.E. 503, 504].) Testimony was properly received of the specific needs and programs of the church involved in relation to the whole property originally held, and to the residue remaining after the taking. (See West Virginia Pulp & Paper Co. v. United States, supra, 200 F.2d at p. 103; and Producers’ Wood Preserving Co. v. Commissioners of Sewerage, supra, 227 Ky. 159, 167-168 [12 S.W.2d 292, 295-296].) The city gave tacit acknowledgement to the propriety of general evidence of this nature by its failure to object. Affirmatively it met the church’s evidence by opinion and demonstrative evidence which indicated that the property would support properly designed facilities which would accommodate the program and activities of the church as revealed by all of the testimony, including the controversial exhibits.

From the foregoing it may be deduced that the plan and the model had some relevancy in demonstrating the space needed for church needs in general, and the particular needs of the condemnee church. The prejudice in directing attention to particular structures which the church proposed to erect on the property taken, would have warranted the rejection of the evidence insofar as it tended to support an improper theory of damage. (See People v. Chevalier, supra, 52 Cal.2d at p. 309.) Nevertheless, under the circumstances, the use of these two items as illustrative of proper testimony was not prejudicial error, and no abuse of the court’s discretion in ruling on evidence of such nature has been demonstrated.

The situation may be likened to that of the testimony of the expert witness in San Bernardino County Flood Control Dist. v. Sweet, supra, of whom the court said, “Mr. Hagen testified extensively on the issue of severance damage. While there may be some support for plaintiff’s contention that he may have based his opinion, in part, on the effect the taking had in preventing the owner from pursuing its contemplated plan of development, his testimony indicated that he considered proper and relevant factors. . . .” (255 Cal.App.2d at p. 902.) The court applied the following rules: “Where it appears that the opinion of a valuation witness is based wholly or chiefly upon improper considerations or incompetent and inadmissible matters, his testimony may be stricken. [Citations.] But where his opinion is based upon considerations which are proper as well as those which are not, the motion to strike may, in the sound exercise of the court’s discretion, be denied and the matter left to the jury to determine the weight to be given the testimony. [Citations.]” (Id.)

At the time the plan and the model were received in evidence the city objected “on the basis of the evidence of value based upon a specific use or owner’s projected plan of use is not admissible.” In overruling the objection, the court observed, “The Jury will be properly instructed, if you will submit instructions along the line you have indicated, and I will see that they are properly instructed.” The city proffered instructions to the effect that the market value was not affected by special use, by the owner’s contemplated use, or by a use that was not economically feasible, or by a non-permitted use for which there was no reasonable probability of rezoning; and that the church could not recover damages for injury to activities conducted by the church on the property except insofar as such injuries were reflected in a decrease of the market value of the property. More specifically, the city requested an instruction defining the use of illustrations and studies of adaptability. The court refused these instructions on the grounds the subject matter was covered by instructions found in BAJI (California Jury Instructions, Civil (4th rev.ed. 1957) 1967 Cumulative Pocket Parts) Part VI, Instruction Nos. 501 et seq. (Cf. 5th ed. 1969, ch. 11, div. C, Inst. Nos. 11.70 et seq.) The city contends it was reversible error to refuse its instruction, and to fail to otherwise explain the limited use for which the plan and model could be used.

An examination of the instructions given reveals that the court gave instructions predicated on BAJI (op.cit.) Instructions Nos. 501, 501-A, 502, 502-A, 502-B, 502-D, 502-G, 503 (Rev.), 504 Alternate (new) Paragraphs (1), (2), (3), (6) and (7), 506, 506-A, 509 and 510. The instructions given, particularly those which have been set forth in the footnotes, generally cover the issues raised by the city’s proffered instructions. In view of the controversy over the admission of the plan and the model the trial court would have been well advised to elaborate upon the general principles enunciated in those quoted instructions. (Cf. fn. 3 with fns. 4, 5, 6 and 7; and see People v. LaMacchia, supra, 41 Cal.2d 738, 752.) Nevertheless, with respect to severance damages the jurors were told, “Merely rendering private property less desirable for certain purposes or even causing personal annoyance or discomfort in its use does not constitute the damage contemplated by law, but the property itself must suffer some diminution in substance, to be rendered intrinsically less valuable by reason of the public use.” “It must be assumed that the jury understood such clear and unambiguous language and correctly applied the instructions to the evidence. [Citations.]” (People v. LaMacchia, supra, 41 Cal.2d at p. 752.)

“The law is clear that instructions on points which have been sufficiently covered by other instructions may properly be refused although they are correctly drawn and applicable to the evidence. [Citations.] ‘A party is not entitled to have the jury instructed in any particular phraseology, and may not complain on the ground that his requested instructions are refused if the court, of its own motion or otherwise, correctly announced the substance of the law applicable to the case. [Citation.]’ (Luis v. Cavin (1948) 88 Cal.App.2d 107, 115 . . .)” (People ex rel. Dept. of Public Works v. Wasserman (1966) 240 Cal.App.2d 716, 736 [50 Cal.Rptr. 95].) No reversible error can be predicated upon the failure to give further instructions concerning the controversial evidence.

The city further cogently argues that the pace of actual development of the site between 1957 when the plan was drawn and 1965, the diminished size and the location of the chapel actually constructed in 1963, the failure to construct planned accessory buildings, the actual size of the congregation and its rate of growth, and regulations governing the use of the land, all demonstrate that the layout on the plan was impractical, unfeasible and without the realism of legal and financial possibility, and that it did not therefore accurately represent the needs of the church. The weight to be given these facts and the other evidence before them, including the testimony outlined above, was the province of the trier of fact. (See San Bernardino County Flood Control Dist. v. Sweet, supra, 255 Cal.App.2d 889,903.)

Finally, the city complains that the award of $47,000 severance damages indicates that the jury must have indulged in speculation and conjecture because there is no testimony relating to that figure (see Appendix, below), and no formula for computing damages was suggested which would produce it. In People v. LaMacchia, supra, the court recognized the duty of the jury to reconcile conflicting testimony. The opinion states: “Next, the state maintains that it was error to instruct the jury ‘if possible, to reconcile the conflicting testimony and to give it all due weight.’ The state argues that in view of the wide discrepancy in the estimates of value and damage by witnesses for the respective sides, it is clear that the opinions were irreconcilably conflicting, and the effect of the instruction was to tell the jury to ‘cut somewhere in between’ divergent amounts. However, ‘Upon the trier of fact rests the responsibility to reconcile, if possible, any apparent conflict, whether the same arises upon the entire case or in the testimony of a single witness, and to effectuate all the evidence, when the nature of the case will admit of such a disposition.’ (Darling v. Pacific Elec. Ry. Co., 197 Cal. 702, 708 . . .)” (41 Cal.2d at pp. 753-754.) In this case the jurors after viewing the premises and hearing all the testimony may have determined that the property was not desirable for church purposes after the taking, but that the improvements which would be lost were not as valuable as the church contended; or they may have determined that the property could be used for church purposes after the taking, but would have a depreciated market value because any expansion would lead to crowded conditions.

Sufficiency of the Evidence

The evidence has been reviewed at length in connection with the city’s attack on its admissibility. If believed by the jury there was adequate evidence to support the verdict as predicated on the finding that the remainder of the property was no longer usable for church purposes, and the church was entitled to recoup the value of its then valueless improvements.

The fact that the jurors returned severance damages at a figure roughly half of that testified to by the church’s witnesses does not invalidate the verdict. In People ex rel. Dept. Public Works v. Jarvis (1969) 274 Cal.App.2d 217 [79 Cal.Rptr. 175], the court observed, “Each witness calculated his respective lump-sum figure from several opinion factors of his own, including different per-acre values and acreage figures assigned by him to various areas of the Jarvis ranch both before and after the condemnation (see fn. 4, ante). The differences among these factors presented conflicts in the evidence; these were for the jury to resolve (People v. Hayward Bldg. Materials Co. (1963) 213 Cal.App.2d 457, 467 . . .), aided by its independent view of the premises. (Rose v. State of California (1942) 19 Cal.2d 713, 738-739 . . .) The range limiting its severance-damage figure ran up to the highest valid arithmetical combination of factors selected from the testimony of all the witnesses; any verdict less than such highest possible figure was—as this one was—‘shown by the testimony of the witnesses’ (People ex rel. Dept. of Public Works v. McCullough, supra, 100 Cal.App.2d 101 at p. 105 [223 P.2d 37]; Redevelopment Agency v. Modell, supra, 177 Cal.App.2d 321, 326-327 [2 Cal.Rptr. 245]) and, hence, supported by the evidence.” (274 Cal.App.2d at p. 227. In addition to the cases cited see, People v. Thompson (1954) 43 Cal.2d 13, 27-28 [271 P.2d 507]; State of Cal. ex rel. Dept. of Water Resources v. Natomas Co. (1966) 239 Cal.App.2d 547, 560 [49 Cal.Rptr. 64]; City of Gilroy v. Filice (1963) 221 Cal.App.2d 259, 272-273 [34 Cal.Rptr. 368]; and People ex rel. Dept. of Public Works v. Pera (1961) 190 Cal.App.2d 497, 501 [12 Cal.Rptr. 129].)

The city’s attack on the qualifications of the witnesses called by the church, and the foundation for their opinions raises factors properly to be considered by the jury. “The credibility of the witnesses and the weight to be accorded the evidence are matters within the exclusive province of the trial court . . . Differences in the valuation testimony in the instant case represented merely a conflict in the evidence. ... It was the exclusive province of the trial court to weigh such evidence and to determine the amount of compensation within the range of such testimony. . . . This disposes of plaintiff’s additional complaint that the court did not accept (although it did receive) the valuation testimony of plaintiff’s expert and the evidence relating to sales to plaintiff of similar sewer easements, on which such expert in part based his opinion. It is apparent that the trial court weighed all of the valuation evidence and determined an award within the range of plaintiff’s witness ($1.00) and defendant’s ($2,250). This was properly within the range of values. . . .” (City of Gilroy v. Filice, supra, 221 Cal.App.2d 259, 272-273, citations omitted.)

Testimony of the Pastor of the Church

In addition to testifying concerning church needs in general, and the needs and programs of his particular church, Pastor Myrant was permitted to testify, over the city’s objection, that in his opinion there was no market for used churches; that the fair market value of the land owned by the church was approximately $1.50 per square foot; that the value of the area taken was $39,000; that the value of the sanctuary was $18 per square foot for a total of $47,340, and the value of the accessory buildings was $14 per square foot for a total of $33,350; that no reduction in value for depreciation was necessary; and that permanent fixtures of a value of $3,666 would be lost in connection with moving the church to another location. He subsequently opined that the total damage to the church was $125,256, although he correctly totaled his former figures on a work sheet at $123,256.

In overruling the city’s objection that no foundation had been shown to qualify the pastor as an expert witness, the court observed, “It isn’t needed where the owner is testifying. The owner is entitled to state his opinion and I suppose that Reverend Myrant is speaking for the owner. Someone has to. Someone is entitled to. It will be overruled on that basis. I agree there is no foundation, no adequate foundation, along the classical lines, but I think it is permittable on that basis.” Subsequently the court instructed the jury, “An expert appraiser or the owner of the property being condemned or any witness who has knowledge of the market válue of the subject property may give his opinion of such market value and severance damage, if any, and the reasons for such opinion.” (Italics added.) The court erred in so ruling.

Under the law of this state the owner of the property or property interest being valued may testify as to his opinion of the value in issue. (Evid. Code, § 813, subd. (a) (2); and see People v. LaMacchia, supra, 41 Cal.2d 738, 746; Long Beach City High School Dist. v. Stewart (1947) 30 Cal.2d 763, 772 [185 P.2d 585, 173 A.L.R. 249]; Spring Valley Water Works v. Drinkhouse, supra, 92 Cal. 528, 534-535; Los Angeles City High School Dist. v. Rodriquez (1955) 135 Cal.App.2d 760, 765 [287 P.2d 871]; and People v. Jones, supra, 61 Cal.App.2d 531, 537.) The rule was originally predicated on the theory that the owner who resided on and owned property for a period of years would be presumed to acquire sufficient knowledge of the property and of the value of the land in that neighborhood to be able to give an intelligent estimate as to the value of his own property. (Spring Valley Water Works v. Drinkhouse, supra, 92 Cal. at p. 535. See also, 5 Nichols, Eminent Domain (3d ed. rev. 1962) § 184[2], pp. 198-202; and 1 Orgel, Valuation Under the Law of Eminent Domain (2d ed. 1953.) § 132, p. 567.) With the adoption of thfe Evidence Code, the rule was codified. (Evid. Code, § 813 subd. (a)(2); Stats. 1965, ch. 1151, § 4, p. 2904, operative July 1,1967.)

Generally, however, an officer of a corporate owner is not qualified to testify unless he is otherwise qualified. In First Baptist Church v. State Dept. of Roads (1965) 178 Neb. 831 [135 N.W.2d 756], the court reversed a condemnation award in an action in which members of the church, one of whom had been an officer, had been permitted to testify as to value. The court ruled, “Membership in the church does not bring these witnesses into a relationship with the property so they may testify as to valuation without foundation. An officer or president of a corporation is not an owner of property belonging to the corporation in the sense of the word when applied to an individual owner. There is no presumption in his favor as in the case of an individual owning property, and in order to qualify he must be shown to be familiar with the property and have such a knowledge as to qualify him to testify because of his knowledge of values generally in the vicinity. Omaha Loan & Trust Co. v. Douglas County, 62 Neb. 1 [86 N.W. 936], We come to the conclusion that membership in the church does not qualify them to testify as to the value of the church without further foundation.” (178 Neb. atp. 834 [135 N.W.2d at p. 758]. See also State ex rel. State Highway Co. v. Assembly of God (1962) 230 Or. 167, 177-178 [368 P.2d 937, 942]; M. A. Realty Co. v. State Roads Com. (1967) 247 Md. 522, 525-526 [233 A.2d 793, 795-796]; 5 Nichols, op.cit., § 184[2], p. 202; and Annotations, Public or Corporate Officer as within rule that owner of property may testify to value thereof (1920) 5 A.L.R. 1171, (1926) 145 A.L.R. 1494. Cf. Idaho-Western Ry. Co. v. Columbia etc. Synod (1911) 20 Idaho 568, 574-576 [119 P. 60, 61-62].)

The church predicates the propriety of the testimony on the following principle: “A witness who through knowledge and experience possesses the means to form an intelligent judgment as to the value of land beyond that possessed by persons generally is competent to give an opinion on fair market value even though he is not a real estate appraiser or broker. [Citations.]” (San Bernardino County Flood Control Dist. v. Sweet, supra, 255 Cal.App.2d 889, 898. See also, Pacific Gas & Elec. Co. v. Hufford (1957) 49 Cal.2d 545, 563 [319 P.2d 1033]; People ex rel. Dept. of Public Works v. Alexander (1963) 212 Cal.App.2d 84, 90-91 [27 Cal.Rptr. 720]; Los Angeles City High School Dist. v. Rodriquez, supra, 135 Cal.App.2d 760, 766-769.) An agent or officer of a corporation may be so qualified. (See F.X. Bilodeau Realty Inc. v. Lewiston Urban Renewal Authority (Me. 1968) 237 A.2d 398, 399-400; and Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authority (1956) 335 Mass.. 189, 198 [138 N.E.2d 769, 775].) It is axiomatic that “[T]he qualification and competency of one offered as a valuation witness is a matter to be determined by the trial court- and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown. (Pacific Gas & Elec. Co. v. Hufford, supra, 49 Cal.2d 545, 563; People v. Hayward Bldg. Materials Co., 213 Cal.App.2d 457, 471 . . .)” (San Bernardino County Flood Control Dist. v. Sweet, supra, 255 Cal.App.2d at p. 899. In addition to cases cited see, Los Angeles City High School Dist. v. Rodriquez, supra, 135 Cal.App.2d at p. 765.) In this case, however, no such determination was made because the court permitted the testimony to be introduced on an erroneous theory. Nevertheless, in order to determine whether the city was prejudiced by this ruling it is necessary to examine the testimony of the pastor to determine whether the exclusion of his opinions, on the basis of the qualifications he did express, would have been an abuse of discretion; and, if not, whether his testimony as to value was prejudicial in the light of all of the evidence in the case.

The pastor’s testimony concerning his qualifications was as follows; While attending a theological seminary after graduating from Northwestern University he served as interim pastor of one church and as a teacher in a leadership capacity in another. The former position involved him in counseling and discussing the further development program of that church which then had one building on its site. Later he worked with the pastor of a newly formed church in discussing the building program and development of that church. As a teacher at a bible college he was involved in extensive search for properties for development of a school, and for developed properties to which the school could be moved. On later assignments he had similar experiences with development and building programs. He followed professional magazines to keep abreast of national trends and denominational programs on church building and site utilization. He participated in searching for sites for churches and church related schools and reviewed opportunities of purchase of other buildings that had previously been used as a church. He received a certain amount of instruction in these fields in practical courses during his schooling.

He did not come to Pleasant Hill until November 30, 1966, over a year after the date of the taking, September 29, 1965, which is applicable to the values in this case. He obtained a figure of $1.50 per square foot by discussing the value of the property with people who were interested because they had property in the area, and with members of the congregation, and by examining the general pattern of zoning and community development. He arrived at the figures for valuing the improvements on the basis of his participation in other building programs in the midwest, and information he had obtained that building costs were higher here than in the midwest. He was not familiar with the legal definition of fair market value or the rules for determining severance damages.

Although the foregoing testimony serves to qualify the witness to testify with respect to the spatial needs of the church, it is devoid of any general knowledge of the market value of real estate or of building costs in Pleasant Hill in September 1965. His opinions merely reflect the opinions of others and have no basis in factual knowledge of real estate sales or building costs. As stated in First Baptist Church v. State Dept. of Roads, supra, “There is no evidence that either Christensen or Hall were property owners. The theory on which the trial court received this evidence, over objection, was that these two witnesses were qualified in the same manner as owners, since they were members. This was error as we have seen. The lack of foundation otherwise is almost apparent. There is a total absence of testimony that they were familiar with real estate values; that they were informed as to the state of the market; or that they kept track of sales or any other pertinent information usable as a basis for an intelligent estimate of value. Mere familiarity with the physical structure and location of the church does not automatically render them competent to testify as to value, nor does participation in the remodeling activities beginning 14 years prior to the taking furnish an adequate basis.” (178 Neb. at pp. 835-836 [135 N.W.2d at p. 759]. See also People v. Hayward Bldg. Materials Co. (1963) 213 Cal.App.2d 457, 470-472 [28 Cal.Rptr. 782].) The evidence of the pastor’s qualifications did not require the admission of his testimony as to value as a matter of law.

The prejudicial effect of the pastor’s testimony must be evaluated in the light of the entire record and is considered below.

View

The city asserts that it was error to permit the jury to inspect the improvements on the land, as distinguished from viewing the land actually taken and its relation to the property remaining. Prior to the view, the following occurred: “The Court: May I ask if the scope of the view has been determined as yet. There was a question earlier this morning that was discussed. I think the Jury should have the right to see everything that’s there. [Attorney for the Church]: That was our request, your Honor.” The failure of the city to object at the time should preclude further complaint on appeal. (Shields v. Oxnard Harbor Dist. (1941) 46 Cal.App.2d 477, 489 [116 P.2d 121]; City of Los Angeles v. Morris (1925) 74 Cal.App. 473, 483 [421 P. 409]; and see City of Riverside v. Kraft (1962) 203 Cal.App.2d 300, 301-302 [21 Cal.Rptr. 425].)

“The question as to whether the jury should be permitted to view the premises is a matter within the discretion of the trial judge. [Citations.]” (County of Los Angeles v. Pan American Dev. Corp. (1956) 146 Cal.App.2d 15, 20 [303 P.2d 61]. See also, City of Riverside v. Kraft, supra, 203 Cal.App.2d 300, 301; Shields v. Oxnard Harbor Dist., supra, 46 Cal.App.2d 477, 488-489; Evid. Code, § 813, subd. (b); and Code Civ. Proc., 610. Cf. People ex rel. Dept. Public Works v. Arthofer (1966) 245 Cal.App.2d 454, 469 [54 Cal.Rptr. 878].) Since the church relied upon the special purpose rule (see fn. 1, above), and the experts relied upon reproduction costs as an element of value, no abuse of discretion has been shown. Nor was there any error in instructing the jurors that what they saw and the knowledge they acquired as a result of their visit was independent evidence in the case and should be considered by them, together with all of the other evidence in the case in arriving at their verdict. (See San Francisco Bay Area Rapid Transit Dist. v. Central Valley Nat. Bank (1968) 265 Cal.App.2d 551, 555 [71 Cal.Rptr. 430].)

Evidence of Comparable Sales

The church’s first qualified expert testified concerning his qualifications and launched into a description of the factors considered in his valuation of the property involved in this case. When the attorney for the city requested permission to examine on voir dire with respect to the witness’s testimony regarding comparable sales, the proceedings were recessed out of the presence of the jury. The city then objected to one of the comparable sales offered on the ground that it was too remote in distance from the subject property, and to a second because there was no showing that there was a reasonable possibility that the subject property could have been rezoned for multiple use in the manner of the property to which the witness referred. The witness testified that he had discussed the matter of rezoning with a co-owner of nearby property who had purchased the property, had it rezoned and sold a portion. He acknowledged that he had not discussed the matter with the planning commission, or the city council, or officially with any officer of the city; and stated that his conclusion that the property could be rezoned was based on inference from what had been done. He had previously testified on direct examination that the master plan of the city showed low or medium density multiple family uses for the area, and subsequently he repeated before the jury his testimony concerning the rezoning of the other property, and acknowledged on cross-examination that he had not checked with the planning commission or the city council. The jury was instructed as to the limited purposes for which evidence of comparable sales was received, the manner in which such testimony should be evaluated, and the effect of a reasonable probability of a change in zoning restrictions. (See BAJI, op.cit., Instruction No. 504 Alternate (new), particularly pars. (3) and (7), fn. 6 above.)

The general qualifications governing the use of evidence of comparable sales, and the rule for review of the action of the trial court in ruling on the admission of such evidence were first phrased as follows: “The sales of the other tracts must have been sufficiently near in time, and the other land must be located sufficiently near to land to be valued, and must be sufficiently alike in respect to character, situation, usability, and improvements, to make it clear that the two tracts are comparable in value and that the price realized for the other land may fairly be considered as shedding light on the value of the land in question. Manifestly, the trial judge in applying so vague a standard must be granted a wide discretion.” (County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 678 [312 P.2d 680]. See also, Evid. Code, § 816; San Bernardino County Flood Control Dist. v. Sweet, supra, 255 Cal.App.2d 889, 905; People ex rel. Dept. Public Works v. Arthofer, supra, 245 Cal.App.2d 454, 463; People ex rel. Dept. Public Works v. Auburn Ski Club (1966) 241 Cal.App.2d 781, 783-786 [50 Cal.Rptr. 859]; People ex rel. Dept. Public Works v. Silveira, supra, 236 Cal.App.2d 604, 622-624; People ex rel. Dept. Public Works v. Kawamoto (1964) 230 Cal.App.2d 18, 21 [40 Cal.Rptr. 85]; Buena Park School Dist. v. Metrim Corp. (1959) 176 Cal.App.2d 255, 259 [1 Cal.Rptr. 250]; Covina Union High School Dist. v. Jobe (1959) 174 Cal.App.2d 340, 349-350 [345 P.2d 78]; and cf. People ex rel. State Park Com. v. Johnson, supra, 203 Cal.App.2d 712, 718-720.)

The record reveals that the “distant” sale was within one mile of the subject property. Under these circumstances there was no abuse of discretion in permitting reference to this sale with opportunity for cross-examination to show that it involved property in another city and whatever effect that factor would have on its value. (See San Bernardino County Flood Control Dist. v. Sweet, supra, 255 Cal.App.2d at p. 905.)

“Where there is a reasonable probability that zoning restrictions will be altered in the near future, the jury should consider not only those uses currently permitted, but also other uses to which the property could be devoted in the fevent of such a change. [Citation.]” (People ex rel. Dept. of Public Works v. Donovan (1962) 57 Cal.2d 346, 352 [19 Cal.Rptr. 473, 369 P.2d 1]. See also, People v. Dunn (1956) 46 Cal.2d 639, 642 [297 P.2d 964]; People ex rel. Dept. Public Works v. Arthofer, supra, 245 Cal.App.2d 454, 462-463.) “The reasonable probability of a zoning change may be shown by a variety of factors, including neighborhood changes and general changes in land use.” (People ex rel. Dept. of Public Works v. Donovan, supra, 57 Cal.2d at p. 353.) It is questionable whether an inference predicated on the rezoning of one parcel would constitute sufficient foundation to qualify the witness to express an opinion as to the reasonable probability of a zone change. A ruling excluding such testimony might well have been no abuse of discretion. (See, People ex rel. Dept. Public Works v. Arthofer, supra, 245 Cal.App.2d at pp. 463-466.) In this case it is unnecessary to pursue the matter because of lack of prejudice to the city. Each of its expert witnesses opined that he considered the value of the property if used for multiple dwelling purposes after familiarizing himself with the zoning in the general area of the subject property. Witness Orr expressly testified, “The subject property was zoned for single family and it did have the probability of being zoned to multiple residential units.”

The city also asserts that not only was evidence of the comparable sales alluded to by the church’s witness Johnson incompetent because not comparable, but also, that other testimony elicited from that witness on cross-examination, demonstrated that'the witness was not qualified to express an opinion on the value of the land or on the cost of reproduction of the improvements. There was no objection to any of this testimony (as distinguished from the objection to the testimony of the witness as to the usability of the premises for church purposes after the taking), nor did the city make any motion to strike. The sole objection in the record appears when the court properly cut short the city’s voir dire examination as to the witness’s qualifications on the grounds that it was transgressing into the field of cross-examination. On this record no objection can be considered at this stage of the proceedings. Furthermore, the testimony adduced appears to fall within the principles set forth above governing the range of the court’s discretion, both with respect to the qualification of the witness as competent to express an opinion as to value, and in relation to the relevancy and competency of the evidence of comparable sales. The city’s contentions go to the weight rather than the competency of the evidence.

Admission by Prior Answer

In its original answer filed November 18, 1965, and verified by the chairman of its board of trustees, the church alleged severance damages of $15,000. By interlineation the answer was amended to claim severance damages of $100,000. According to the city this amendment was made in 1967 after the church had substituted new counsel in the case. The city offered to read the superseded answer in evidence. The attorney for the church objected on the ground that the evidence was not material and represented to the court that the answer was filed without the benefit of an appraisal. The court accepted the attorney’s statement on the basis of what the experts who had testified had stated as the time of their initial investigation of the case, and sustained the objection on the grounds that it would open up collateral issues. (See, People ex rel. Dept. Public Works v. Miller (1964) 231 Cal.App.2d 130, 133-134 [41 Cal.Rptr. 645].)

Prior to the adoption of the Evidence Code the following rule governed the use of an admission in a superseded pleading: “It is generally recognized, however, that a superseded pleading may be given some evidentiary effect, although the courts are not in accord as to the circumstances under which it may be considered. . . . By a long line of decisions, it is established in this state that such a pleading is not admissible as direct evidence to establish a fact in issue. . . . The reason for this view is that the use of superseded pleadings to such extent as to embarrass the amending party is in derogation of the policy of liberality in permitting amendments to pleadings. . . . However, where the party has testified in the action, a superseded pleading may be offered for the purpose of impeachment.

. . .” (Citations and footnote omitted.) (Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 384-385 [267 P.2d 257]. See also, Walter J. Warren Ins. Agency v. Surpur Timber Co. (1967) 250 Cal.App.2d 99, 106-107 [58 Cal.Rptr. 143]; Cahill Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367, 383-384 [25 Cal.Rptr. 301]; and Lerner v. Glickfeld (1960) 187 Cal.App.2d 514, 527 [9 Cal.Rptr. 686].)

Under these rules the superseded allegation could only have been used for impeachment purposes. (See, Cahill Bros., Inc., v. Clementina Co., supra, 208 Cal.App.2d at p. 384; and Lerner v. Glickfeld, supra, 187 Cal.App.2d at p. 527.) Mr. Batz, the chairman of the board of trustees who verified the original complaint, was not called as a witness although the record reveals that he purchased a residence to the rear of the church property in 1963. No a