DETERMINATION OF VALUE OF IMPROVED REAL ESTATE.

Court of Appeals for Hamilton County.

#### Linesch et al v. Board of Education of St. Bernard et al.

Decided, June 1, 1920.

*Eminent Domain*— Condemnation *of Property for School*Purposes— *Value of Improvements may he Separated from the Value of the Land.*

1. In determining the value of improved real estate in an appropriation proceeding a property owner may offer evidence as to the value of the improvements separate from the land and show the value of the land separate from the improvements.

2. In an action by a board of education to appropriate for school purposes private property consisting of lots on which stand brick and frame dwellings, part of which were built but four years prior to the commencement of the proceedings, and no question being raised as to the improvements not being adapted to the land, it is error for the trial court to exclude testimony of contractors and builders, who had made an examination of the houses a short time before the trial, as to the value of the improvements independently of the value of the land.

*B. T. Archer*and *Edouard H. Jones,*for plaintiffs in error.

*Wilson, Fitzpatrick & Quane,*for defendants in error.

Heard on error.

By the Court.

The board of education of the school district of St. Bernard instituted an action in the court of insolvency of Hamilton county, Ohio, to appropriate for school purposes certain real estate owned by John H. Linesch and Rudolph Schumacher. The property of Schumacher consisted of three lots, on which stand two brick dwellings. The property of Linesch consisted of four lots, on two of which stands a frame dwellinghouse built four years prior to the commencement of the action. No question is raised of the improvements in question not being adapted to the land.

At -the trial the property owners offered testimony of contractors and builders who had made an examination of the houses a short time before the trial. They testified to the value of the improvements, independently of the value of the land. Later this testimony was. on motion, stricken out by the court, *224and other similar testimony offered was not permitted to be introduced. Objection and exception were duly taken. Evidence had been offered of the value of the land without the buildings. Under the rule in Ohio a property owner has the right to show the value of his land separate ‘from the building, and the value of the building separate from the land. *Cleveland Terminal & Valley Ry.*v. *Gorsuch,*8 C. C. (N. S.), 297, 302, affirmed, *Gorsuch*v. *Cleveland Term. & Val. Ry.,*76 Ohio St., 609. 2 Nichols, Eminent Domain, (2 ed.), Section 447; also *Blackwell’s Island Bridge Co.*v. *New York,*198 N. Y., 84 [9 N. E. 278].

This method of valuing real estate is that recognized by the tax laws of Ohio, and all improved property is assessed for taxation.

Reliance was placed by the defendants in error upon the decision in *Devou*v. *Cincinnati,*162 Fed,, 633 [89 C. C. A. 425]. In that case the property sought to be condemned was’ a four-story stone and brick building in a portion of the city which at the time the building was constructed had been a fashionable one. In the course of years the situation changed, the locality deteriorated, and the structure became a tenement house occupied by negroes. It was attempted to- show the cost of the original construction. The court points out that under the circumstances of that ease, where that character of building was no longer adapted to the purposes for which it was used, the evidence of the cost of construction would not enlighten the jury, but rather tend to confuse and mislead. Moreover, the report of that case shows that there was an abundance of testimony as to the market value of the land and building as it stood. The ruling of the trial court there, while apparently proper under the precise state of facts shown, is not a safe guide for all cases, and was not fairly applicable to the situation disclosed in the case at bar.

The court erred in excluding the testimony as to the value of the buildings.

The judgment will be reversed and the cause remanded for a new trial.

Shohl, Hamilton and Cushing, JJ., concur.