1.10 Conduct of Just Compensation Trial

• Library: Eminent Domain Law in Virginia (Virginia CLE) (2017 Ed.)

1.10 CONDUCT OF JUST COMPENSATION TRIAL ³⁹⁵

1.1001 Presentation of Evidence. The trial is conducted like a civil trial by jury. The judge presides and rules on the evidence in accordance with applicable law. ³⁹⁶ The condemnor has the right to open and close the trial. ³⁹⁷ An expert appraiser hired by the landowner cannot be compelled to testify on behalf of the condemnor. ³⁹⁸ Statements during closing argument by the condemnor's lawyer to "be fair to yourself" and to "paying your money" were improper and justified a mistrial. Such statements could not be cured by a cautionary instruction of the judge. ³⁹⁹

1.1002 Expert Witnesses. Generally, expert witnesses may testify as to value where special knowledge or expertise of such witnesses will help a jury determine value. ⁴⁰⁰ The expert need not have formal education regarding the matter, and the matter need not be "part of a science, art, learned profession or highly technical occupation." Section 8.01-401.1 of the Virginia Code gives experts latitude in forming and testifying to opinions. The acceptance of an expert witness is in the discretion of the trial court and experts need not be highly qualified or "have all the knowledge possible . . . in his class." ⁴⁰¹

In addition to professional appraisers, real estate agents or builders can qualify to testify as to value unless the facts show unfamiliarity with the subject property or surrounding property values. The expert witness's knowledge may be derived from buying and selling, valuing, and managing real estate in the area where the particular property is situated, especially if accompanied by a knowledge of sales of similar property. ⁴⁰²

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Section 54.1-2011 of the Virginia Code requires that all persons holding themselves out as professional appraisers meet certain licensing standards administered by the Real Estate Appraiser Board. Section 54.1-2010 provides certain exceptions to the licensing requirement, such as employees of governmental units. While the Virginia Supreme Court held, in Lee Gardens Arlington Ltd. Partnership v. Arlington County Board, ⁴⁰³ that a real estate broker may not testify for compensation on the value of real property in a court proceeding under the professional appraiser requirements, section 54.1-2010 of the Virginia Code was subsequently amended to clarify that the statute does not "proscribe the powers of a judge to determine who may qualify as an expert witness to testify in any legal proceeding." ⁴⁰⁴

However, expertise in one field does not qualify one as an expert even in a closely related field. In Virginia Electric & Power Co. v. Lado, ⁴⁰⁵ an appraiser could not testify as to the physical dangers from an electric transmission line. Likewise, expertise in one area of a particular field does not qualify that person as an expert in other areas of that field. In Norfolk & Portsmouth Traction Co. v. Ellington's Administrator, ⁴⁰⁶ testimony from a trolley motorman was rejected in determining the proper method of constructing track crossovers.

In construing section 8.01-401.1, the Virginia Supreme Court has held that an expert may not testify as to hearsay opinions on which he or she relied to render the expert opinion even though the opinion itself is admissible. Testimony from a trolley motorman was rejected in determining the proper method of constructing track crossovers. ⁴⁰⁷ Most real estate appraisers rely on many hearsay sources to estimate value, including government officials and cost manuals, but should avoid relying on the opinions of other appraisers not called as witnesses.

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1.1003 Instructions. The use of instructions to guide decisions of civil juries is a firmly established practice, although it is not directly mentioned in Title 25.1 of the Virginia Code. ⁴⁰⁸ The practice varies somewhat across Virginia, but the majority approach is for the court to give the instructions at the conclusion of the presentation of evidence. Use of a preliminary instruction should be considered if testimony that might be misunderstood or misconstrued is expected.

Subjects covered by instructions include:

1.	General duties of the commissioners or jurors and the nature of eminent domain proceedings.
2.	The definition of fair market value to guide setting the value of the property or property interest being taken. 409
3.	Method of determining damage, if any, to the property not actually taken. The landowner has the burden of proving damage to the residue. 410 However, Virginia Electric & Power Co. v. Webb 411 indicates that commissioners may award damages without hearing evidence on damages if they believe from their view alone that construction and operation of the facilities will damage the residue.
	Of course, damages may not be speculative or in common with other nearby tracts. 412 The proper test of damages is the difference in value before, and immediately after, the take. 413 In addition, the effect of extinguishing

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	easements of direct access is relevant in determining the value of the residue. Commissioners may consider every present or future circumstance that affects its present value if those factors are not speculative. 414
	It is proper in considering damages to the residue to consider the expense of adjusting property to the changed conditions brought about by the taking, although such costs may not be recovered as separate items of damage. 415 The cost of restoring the residue land to a condition that will make it available for use is a proper element of damages but not to the degree necessary to carry out the activity on the original par-cel. 416 The Virginia Supreme Court, in Bradshaw v. State Highway Commissioner, 417 held that the state need not pay the cost of minor restoration to gasoline pumps because the repair was the property owner's duty.
4.	The landowner's duty to mitigate damages to the resi-due. 418 Landowners have a general duty to take necessary measures to limit damage to the residue.
5.	The manner of determining enhancement against damages to the residue. The condemnor has the burden of proof of showing peculiar benefits or general enhancement to the residue property offsetting damages due to the take. 419

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6.	Expenses of moving personal property of the property owner. Virginia still follows the minority rule that such expenses are compensable. 420
7.	Weight to be given to the view and use of other evidence by the jurors or commissioners in setting just compensation. Landowners should consider a "common knowledge" instruction. The view is not to be considered by the court, commissioners, or jurors as "the sole evidence in the case," 421 although the view may be the only evidence for damages. 422
8.	The weight to be given to expert and nonexpert opinion testimony and determination of credibility of witnesses. The weight to be given oral or documentary testimony in determining fair market value is generally left to the reasonable discretion of the jurors or commissioners. A party is not bound by the testimony of its own wit-ness. 423 An expert witness must show sufficient knowledge, skill, or experience to make him or her competent as an expert on the subject matter that he or she is testifying about; for example, a real estate appraiser was not qualified to testify on the potential hazards of an electric transmission line. 424
9.	If representing the condemnor, the attorney should consider a separate instruction on weight to be given the landowner's testimony on fair market value.

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10. Procedure used to prepare the jurors'/commissioners' report on value, stating that quotient awards are forbidden and that the report setting value need not be a

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