The opinion of the court was delivered by CONFORD, S.J.A.D.
This is a condemnation proceeding. The plaintiff, a privately owned public utility, acting pursuant to statute, condemned an easement across the defendant corporation's 42-acre tract of unimproved land in the Borough of Montvale, Bergen County, for purposes of erecting and maintaining a high-tension electric transmission line on poles. The easement was for a 100-foot width, on 50 feet of which there was already an underground easement of the Tennessee Gas Transmission Company with gas piping installed therein.
The single expert witness for the defendant-owner of the property, William J. Schwenn, testified at the jury trial in the Law Division that the damage to the premises as the result of the taking was $26,100. The plaintiff produced two witnesses, one testifying that the value of the land taken was $3,800, and the other giving a valuation of $3,240. Both of these witnesses said that there was no severance damage to the remainder of the tract. Schwenn's estimate included an element for such severance damage. The jury returned a verdict of $16,467, on which judgment was entered.
On this appeal the plaintiff does not challenge the jury verdict, but only the ruling of the trial court sustaining the qualifications of Schwenn as an expert witness and the exclusion of certain questions addressed to the plaintiff's witness Slothus on redirect examination.
At the trial, defendant offered Schwenn as an expert witness on land values, and upon challenge of the witness by plaintiff, examined him on his qualifications before eliciting any testimony concerning value or damages. The witness stated he had been a real estate appraiser for 30 years, had appraised thousands of pieces of property for the government and private parties, and that his work had included other appraisals in the immediate area as well as the appraisal of the entire right of way of the Tennessee Gas Transmission line across the State, including the 50-foot easement taken by that company within the very subject property. He indicated familiarity with the physical characteristics, location and zoning of the property here involved.
When the witness was asked a direct question as to his valuation of the subject property as of September 1959, plaintiff objected that the witness had not been qualified "because he has not given any testimony as to comparable properties or shown he has any knowledge of the value of properties in the neighborhood of this property." To meet the objection defendant questioned the witness concerning "comparable values" in the area (both counsel were obviously referring to sales of comparable properties). Before the witness could answer, plaintiff again objected "unless he testifies to them of his own knowledge," "not from hearsay." The court overruled the objection, and the witness cited sales of three other properties in the general area. On cross-examination, limited to qualifications, Schwenn indicated his knowledge of one of the sales came from the purchaser, of another from an attorney in the transaction, and of the third "from the records." Upon renewal of objection to the witness's qualifications on the ground that he did not have first-hand knowledge of the sales of the properties sold and that they were not "comparable," the court overruled the objection and permitted the witness to testify.
The sole basis for the attack upon the trial court's ruling qualifying the witness is the asserted adverse holding in Essex County Park Comm. v. Brokaw, 107 N.J.L. 110 ( E. A. 1930), wherein four judges of the court dissented. In that case the court sustained the action of a trial judge in refusing to qualify a valuation witness whose only knowledge of value, so far as appears from the opinion, was sales information gleaned from others or from public records, rather than direct personal knowledge of such sales. The court said (at p. 112): "* * * the qualifying knowledge of comparable sales must be such as would be competent evidence if testified to by the proposed witness or, if not, must be substantiated by competent evidence of others before it can have the effect of qualifying the witness to speak as an expert." No authority for that proposition was cited by the court. Before considering the effect on that ruling of the 1931 statute ( L. 1931, c. 229), now found in N.J.S. 2 A:83-1, or its intrinsic merit as a precedent, we observe that the case is not controlling here since considerably more was shown to qualify this witness than knowledge of sales of other property.
The witness had made "thousands" of appraisals professionally and had testified as an expert frequently (other appeals decided by this court include cases where this witness testified as a realty expert concerning Bergen County property in both tax and condemnation litigation; see, e.g., Jat Company, Inc. v. Division of Tax Appeals, 47 N.J. Super. 571 , 577, 579 ( App. Div. 1957), certification denied 27 N.J. 278 (1958); Village of Ridgewood v. Sreel Investment Corp., 28 N.J. 121 , 126 (1958); and the filed record of Tennessee Gas Transmission Co. v. Maze, 45 N.J. Super. 496 ( App. Div. 1957)). His experience included appraisal of and testimony in court concerning a gas transmission easement across the very property here in question. From these facts alone the trial court in its sound discretion could have concluded that the witness was well qualified to have, and had, in fact, conducted all such studies of pertinent and relevant data as are customarily made by valuation experts, in arriving at his opinion of the value of the property involved in this case. He was thus affirmatively shown to have been possessed of expert qualifications not manifest in the Brokaw opinion concerning the witness who was there held unqualified.
In this State, as generally, a witness may qualify as an expert by reason of study without practice or practice without study. 2 Wigmore on Evidence (3 d ed. 1940), § 555 et seq.; 3 Id., § 712 et seq.; Wheeler Wilson Mfg. Co. v. Buckhout, 60 N.J.L. 102, 105 ( Sup. Ct. 1897); State v. Arthur, 70 N.J.L. 425, 427 ( Sup. Ct. 1904); Fenias v. Reichenstein, 124 N.J.L. 196 , 200 ( Sup. Ct. 1940); cf. Sanzari v. Rosenfeld, 34 N.J. 128 (1961). Other jurisdictions hold that a witness may qualify as an expert by reason of training, experience or both, Carroll v. Magnolia Petroleum Company, 223 F.2d 657, 664 (5 Cir. 1955); or if he has the requisite knowledge, skill or training, Bratt v. Western Air Lines, 155 F.2d 850, 853, 166 A.L.R. 1061 (10 Cir. 1946), certiorari denied 329 U.S. 735, 67 S.Ct. 100, 91 L.Ed. 635 (1946); or if, because of special study or experience he possesses special skill or knowledge not common to the average man, Wilmington Housing Authority v. Harris, 8 Terry 469, 47 Del. 469, 93 A.2d 518, 522 ( Super. Ct. 1952); Tifton Brick Block Co. v. Meadow, 92 Ga. App. 328, 88 S.E.2d 569, 573 ( Ct. App. 1955). Expertness may be acquired by occupational experience as well as by scientific study, Rogers on Expert Testimony (3 d ed. 1941), § 40, p. 69; Churbuck v. Union Railroad Co., 380 Pa. 181, 110 A.2d 210, 213 ( Sup. Ct. 1955); United States v. 3969.59 Acres of Land, 56 F. Supp. 831 , 838 ( D.C.D. Idaho 1944).
It is elementary that, within broad limits, the qualifications of an expert witness are for the discretionary determination of the trial court; an appellate court will not reverse if there is " any legal evidence" to support the trial court's action. Brown v. New Jersey Short Line R.R. Co., 76 N.J.L. 795 , 796 ( E. A. 1908) (emphasis by the court). There was clearly no mistaken discretion in the qualification of Schwenn as an expert by the trial court, notwithstanding the Brokaw case, supra. Cf. State, by State Highway Commissioner v. Williams, 65 N.J. Super. 518 ( App. Div. 1961). The witness showed exceptionally extensive study and experience in the field of land valuation, including the area surrounding the property in question. It is of note, incidentally, that plaintiff, while attacking the qualifications of Schwenn for use of alleged hearsay in his sales data, itself relied upon the testimony of a realty expert who supported his valuations by sales information supplied by others, and thus also without his "personal" knowledge.
Some comment concerning the applicability of N.J.S. 2 A:83-1, supra, is required. This statute, enacted not long after the decision of the Brokaw case, and undoubtedly because of it, provides in substance that any witness in a tax assessment or condemnation case shall be competent to testify as to sales of comparable property on the basis of information obtained from the owner, seller, purchaser, lessee or occupant, or from brokers who negotiated or who are familiar with or cognizant of such sales. However, it contains a proviso that it "shall not be construed to apply to any action or proceeding instituted by any individual or private corporation authorized to take property for public use where compensation must first be made to the owner therof." Defendant invokes this statute as an additional sanction for the use of information of sales received from participants therein by the witness Schwenn, and urges that the proviso, if construed as applicable to a condemnation proceeding by such a corporation as this plaintiff, may be read out of the statute as unconstitutionally discriminatory, special and unreasonable. However, the question of constitutionality was not raised below or in defendant's "Statement of Questions Involved," and we deem it unnecessary to pass upon it, as we have found the qualification of the witness not to have been reversible error, apart from the effect of the statute.
It is to be observed, moreover, that the cited statute does not purport to deal directly with the qualification of an expert witness, the only question involved in this phase of the present case, but rather with the substantive competency of sales offered as direct evidence of value when proven in the manner specified by the testimony of any witness. See White v. State Board of Tax Appeals, 123 N.J.L. 350 ( Sup. Ct. 1939). Undoubtedly, however, where applicable, the statute eliminates the bar of the Brokaw rule against the qualification of an expert on the basis of the so-called "hearsay" nature of the sales information used by him.
From the foregoing, it is to be noted that the Brokaw rule, prohibiting the use of sales of other properties to qualify an expert unless he participated in the sales or unless direct proof of such sales by participants is adduced, is, by virtue of the statute, a dead letter in New Jersey except in an eminent domain proceeding brought by a privately owned utility. While the decision does not control the present case, for reasons indicated above, it may be well to point out that its philosophy is out of harmony with the generally followed rules on the subject.
Since the customary method by which appraisers of real estate obtain their information of sales of comparable property is from sources they deem reliable, the relevant transactions usually including some in which the appraiser has not participated personally, the generally followed rule "permits an expert witness as to value to base his opinion on those sources of information to which business men usually resort, and allows the witness to divulge to the court the data on which his opinion is based, even though hearsay testimony is thus presented." Delaware, L. W.R.R. Co. v. City of Hoboken, 16 N.J. Super. 543, 556, 557 ( App. Div. 1951), reversed on other grounds, 10 N.J. 418 (1952); see the quotation from Whitney v. Thacher, 117 Mass. 523, 527 ( Sup. Jud. Ct. 1875), set forth in 3 Wigmore on Evidence (3 d ed. 1940), § 719, p. 54; Annotation, 159 A.L.R. 7, 43 (1945); Tennessee Gas Transmission Co. v. Maze, supra (45 N.J. Super., at p. 504). In the true sense, of course, such information is not "hearsay," since on the question of qualification of the witness there is no issue for the fact-finder on the truth or falsity of the facts of the sale cited, but rather a discretionary determination for the court as to whether the expert's knowledge of the sale has been obtained by him by the means customarily used by such appraisers in actual practice. See Delaware, L. W.R.R. Co. v. City of Hoboken, supra (16 N.J. Super., at p. 557).
Plaintiff argues that some of the sales relied upon by the witness Schwenn were of residential property, whereas most of the subject property was zoned for limited commercial uses. But such objections go not to competency, but rather to the probative weight of the proofs. The differences in zoning represent a matter for the witness's expert judgment in evaluating the sales information before applying it to the subject property. There is no contention here that the witness did not in his own mind allow whatever weight he thought warranted to the difference in zones before using the sales. The assumption is that he did. If it could have been shown that he did not, this would go to the weight of his testimony for consideration by the fact-finders.
It is also contended that Schwenn had no demonstrated knowledge as to the severance damage — in this case the effect upon a tract of land zoned in part for residential purposes and in part for limited commercial purposes (but apparently permitting residences in the commercially zoned area, if erected on three-acre plots) of the erection of high-tension poles on a 100-foot easement across the tract. This argument seems to us insubstantial. A real estate expert of broad and extended general experience should be presumed to be able to form a judgment as to the impairment of the commercial utility for either residential or commercial development of a piece of property, attributable to the presence nearby of high-tension overhead wires strung on poles. The special circumstances involved in such cases as Laing v. United New Jersey R.R. Canal Co., 54 N.J.L. 576 ( E. A. 1892); Pennsylvania, N.J. N.Y.R.R. Co. v. Schwarz, 75 N.J.L. 801 ( E. A. 1908); and Van Ness v. New York N.J. Tel. Co., 78 N.J.L. 511 ( E. A. 1909), make them distinguishable. The weight of the expert's opinion is, of course, another matter, but there was no error in accepting the testimony. Rogers, op. cit., supra, § 303. Compare Hafner v. Ritzinger, 256 Minn. 196, 97 N.W.2d 839 ( Sup. Ct. 1959); State ex rel. Kansas City Power Light Co. v. Gauld, 222 S.W.2d 940 ( Mo. Ct. App. 1949), reversed on other grounds, 360 Mo. 795, 230 S.W.2d 850 ( Sup. Ct. 1950); Woolam v. Central Power Light Co., 211 S.W.2d 792 ( Tex. Ct. Civ. App. 1948); Ohio Public Service Co. v. Dehring, 34 Ohio App. 532, 172 N.E. 448 ( Ct. App. 1929).
Finally, plaintiff complains of having been precluded from redirect examination of its expert Slothus concerning the feasibility of developing this property for residential purposes. We agree with plaintiff that there was a sound basis for the attempted redirect examination in that, on cross-examination of the witness, defendant had attempted to show that the commercially zoned area could be developed for residential purposes, apparently to support its own expert's contentions with regard to the damaging effect of overhead electric wires on nearby residential property. It was therefore appropriate to refute that part of the cross-examination by showing on redirect that the property was not in fact susceptible of development for residential purposes. We do not, however, deem this ruling by the trial judge prejudicial, on the whole case, since the witness's cross-examination did reflect an opinion by him that it would not be desirable to erect residences on three-acre tracts, and so the jury undoubtedly got the import of what was sought to be specifically developed on the redirect examination.
Judgment affirmed.