
    UNITED STATES OF AMERICA v. ESTATE OF BERNICE PAUAHI BISHOP, deceased, and JOSEPH O. CARTER et al., Trustees under the will of BERNICE PAUAHI BISHOP, deceased; OAHU RAILWAY AND LAND COMPANY, LIMITED, a corporation; THE DOWSETT COMPANY, LIMITED, a corporation; THE HONOLULU SUGAR COMPANY, a corporation; HONOLULU PLANTATION COMPANY, a corporation; CHOW AH FO, JOHN II ESTATE, LIMITED, a corporation; WILLIAM G. IRWIN, OAHU SUGAR COMPANY, LIMITED, a corporation; BISHOP & COMPANY, a copartnership.
    Decided: January 25, 1902.
    1. In an action to condemn the leasehold interest of the defendant in 561.2 acres of certain lands desired by the United States for the purposes of a Naval Station, where the jury returned a verdict allowing as damages the sum of $105,000 as the value of the leasehold interest and improvements of defendant placed on said lands, upon a motion for a new trial made by plaintiff on the ground of an excessive valuation of said leasehold interest, Held, that the verdict was excessive and not in conformity with the weight of the evidence, the motion allowed and a new trial granted, unless the defendant elects to remit from the verdict the sum of $30,000 and accept the sum of $75,000 in full compensation for all damages.
    2. Neither the Court nor the jury is bound by the opinions of expert witnesses unless they are in harmony with the weight of the testimony, but may consider them in connection with all the other f lets in evidence.
    Eminent Domain. Motion eor New Trial.
    
      J. J. Dunne, Assistant IT. S. District Attorney, for plaintiff.
    
      Hatch & Silliman, for defendant.
    
      Honolulu Plantation Company Case.
    
   Estee, J.

This action was brought by the United States to condemn the leasehold interest of tliei defendant, Tbie Honolulu. Plantation Company, in 561.2 acres of the lands desired, by the United States, for a, Naval Station.

A jury rendered a verdict therein on the 13th day of January, 1902, allowing $89,792 as the value of the leasehold in the 561.2 acres of land and the sum of $15,208 as the value of the improvements on the said land, making' a total of $105,000 for tire whole interest of the defendant in the said lands.

When, the verdict was rendered, both counsel for plaintiff and defendant demanded a new trial, the plaintiff following up such a demand by the proper notice of intention to move for a new trial on a day certain. On that day, the matter was submitted on briefs to be filed.

The principal question involved in the morion in tbe judgment of the court is as to tire verdict being excessive in 'amount, and not borne out by the weight of the evidence.

Xt is presumed the jury intended to be controlled in fixing tbe value of the teashold interest in the lands by a preponderance of ‘the evidence, but in the judgment of the Court they failed to do this.

I will review a few of the estimate placed upon, this leasehold interest. Mr. Archer, the Assessor of the, Territory, and apparently a disinterested witness, placed a valuation of $25 per acre on the leasehold interest in this land. Mr. Herbert, to all intents an unwilling witness for tbe plaintiff, placed a valuation of Horn $75 to1 $100 per acre on thie 342 acres shown by the evidence to have been cleared, and $25 per acre on the remaining 219 acres making an average of from $54 to $71 per acre on the whole 561.2 acres.

The testimony of Mr. Low, the manager of the defendant, and who represented the defendant throughout the: trial, is glaringly and curiously inconsistent. Lie, gave five different estimates, four of them widely varying, as to the value of this leasehold. In his sworn answer filed herein, hie alleges that the defendant would be damaged by tbe taking of this land in the sum of $200,000 less $55,055 for alleged improvements on said land, placing the valuation of the leasehold in the lands' alone at $144,945.

On the trial the same witness testified that the whole interest of the defendant in the leasehold in these lands was worth $400,000.

He further testified that the valuation of the land was $300. per acre without the incumbrance of the leasee but with the leases it would be worth $262 per acre, or about what the average of the estimates of Archer and Herbert would be in this case.

It further appears that in accordance with the laws of the territory, Mr. Low, acting as the manager of the defendant, made a return to the Assessor for the year 1900, in which he swore to the value of the leasehold interests of thie defendant in 4720 acres of land, including the 561.2 in controversy, at $50,000, making an average value of about $15 per acre; while for the year 1901, he returned the same leasehold interests covering a trifle more acreage, 4774 acres, and including the same 561.2 acres in controversy, at $50,000 or an average of $17 per acre.

The evidence showed that a portion of these leased lands other than the 561.2 acres are now and for two. years last past has been cultivated to cane and apparently is quite as valuable as the land, in controversy.

If is further iu evidence, that these tax returns are required by law to be and were sworn to by Mr. Low representing the defendant, and it is further required by said law that these returns shall represent the actual cash value of the property. It is presumed that the defendant through its. Manager, Mr. Low, was swearing to the truth when these returns were made. And if so, how is tlais testimony on the trial to be reconciled there with?

The compensation for this leasehold must be just, and it must be admitted that defendant should not have a judgment for more than, its property is worth, and the value of the property to be taken must bei fixed by tbe rational and usual means. This value should have been obtained by the jury from a fair aaxd reasonable -analysis of all the evidence given by the witnesses on the trial.

Sbi tire Court is largely controlled in deciding this motion by the admitted sworn statements of Mr. low, as toi the value of this leasehold1 interest in this land at a time whom there was no reason, to -inflate its value. Low must have known mora of the value of this leasehold than any other witness -called by defendant ox* by plaintiff, and courts will not permit interested1 parties to blow hot and cold according to thieir developed interest in, a case at bar.

And again; it is not denied that within three years before the commencement of this case, the Dowsett lease which had then ten years to nm was purchased outright by the defendant, including all rents fully paid up, for the sum of $20,000. This lease then and now covering:, inclusive of the 561.2 aeres in controversy, some 2900 acres of land, of which the defendant is now in possession under said leas© -and much of which is being cultivated.

There is no testimony that this land has ever produced any income, and that while 342 acres of the 561.2 has been cleared, it has never been cultivated to 'cane nor has any crop ever been produced upon it. And while it may he possible to- raise cane on tins land or pa-rt of it with plenty of water, yet it, is shallow and much of it is adobe.

The testimony of the eight witnesses called for defendant as experts, -as to the value of this leasehold interest, varied in amounts from $400,000 to $239,400. In the mind of the Court, these estimates were exaggerations and were greatly in excess of any value shown to he possessed by this leasehold interest by the party chiefly in interest, the defendant, through its- Manager, Mr Low. They were mainly lumping estimates of the value of the property and apparently purely speculative, based upon what this land might possibly produce under given conditions not shown to exist; and from a careful examination of the testimony of at least four of these witnesses (Mr. Ahrens, Mr. GoocLale, Mr. Renton and Mr. Meyers, all of whom- were plantation managers), it will be seen that in each, instance a value is fixed upon this leasehold interest of 561.2 aeries far in excess of the amount of the valuation approximately placed upon the lands of the plantations in which they were each managers and in some of them largely interested. These latter plantations had long been cropped with cane and are all producing incomes now, while no income has ever been produced from this land nor any cane grown thereon.

Neither the jury nor the Court is bound by the opinions of expert witnesses unless they are in harmony with the weight of the testimony; but may consider them in connection with all the other facts in evidence.

In view of all the circumstances, a new trial might possibly be properly had. As has been before stated, upon the rendition of the verdict in the case, a demand for a new trial was made by both counsel for plaintiff and defendant, neither of whom was satisfied with the verdict of the jury.

However, upon a careful consideration of the reasons advanced both for and against tbe motion made by the plaintiff, and after a lengthy examination of the wholei of tire record, including 'thei testimony offered on behalf of both parties and of thei able briefs filed herein, I am of tbe opinion that thei 'amount of the verdict rendered by the jury is excessive and not in conformity with the weight of the evidence. This Court would not interpose its judgment in opposition to that of the jury by expressing an amount which in its opinion would be a just compensation for the property of the defendant. But if the jury had returned a verdict in any amount not to exceed seventy-five thousand dollars, this Court would have allowed a judgment to have been entered in accordance therewith.

It is therefore the judgment of the Court that if the defendant remits from the verdict rendered in its favor thirty thousand dollars, leaving the sum of seventy-five thousand dollars as full compensation for its damages of every kind and character in this ease, then the motion made by tbe plaintiff for a new trial will be denied. This election must be made by the defendant within three days from the date hereof by tire filing with the Clerk of this Court a ■written consent to the modification of the: veordiet in that particular, and tire entry of a judgment in accordance ‘therewith. Otherwise a new trial trill be granted.  