312 F.2d 302
A. S. MOYER and Nita Moyer, et al., Appellants,
UNITED STATES of America, Appellee.
United States Court of Appeals Ninth Circuit.
January 23, 1963.
Rehearing Denied February 27, 1963.
Latourette, Latourette & Dickinson, John R. Latourette, Robert P. Dickinson, and Lester W. Humphreys, Portland, Or., for appellant.
Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis and Richard N. Countiss, Attys., Washington, D. C., Sidney I. Lezak, U. S. Atty., and Joseph E. Buley, Asst. U. S. Atty., Portland, Or., for appellee.
Before HAMLEY and MERRILL, Circuit Judges, and BEEKS, District Judge.
Being dissatisfied with the jury's verdict, the defendants in this condemnation case seek a new trial. In support of their request, the defendants allege that the trial court erred in two particulars.
The first assignment of error goes to the trial court's having admitted into evidence an aerial photograph which defendants claim did not accurately depict their property. The second assignment of error relates to certain maps which the Government supplied defendants during pretrial proceedings and which defendants claim were represented as being identical to those that the Government would introduce into evidence during trial. The maps actually introduced are alleged to be at variance with those theretofore given to defendants which fact was not "discovered" by defendants until after the trial was concluded. Further, defendants allege prejudice in that maps offered by the Government during trial contradicted each other.
In regard to the first claimed error, admission of photographs into evidence is within the sound discretion of the trial court. Willis v. Pennsylvania Railroad Company, 269 F.2d 549 (4th Cir., 1959); Chicago G. W. R. Co. v. Robinson, 101 F.2d 994 (8th Cir., 1939), cert. denied 307 U.S. 640, 59 S.Ct. 1038, 83 L.Ed. 1520. When the photograph was admitted, it was accompanied by a thoroughly protective admonition to the jury.
In addition, defendants offered detailed testimony with respect to new roads and other changes in the area involved. Such testimony was augmented by two relief maps or models which defendants used to graphically demonstrate their theory. Also, defendants had adequate opportunity to request witnesses to locate the roads or other changes they deemed material on the aerial photograph. The defendants did not take advantage of such opportunity.
We find no prejudice in the admission of the photograph.
The second specification of error, urged after trial, was considered at a hearing afforded defendants by the trial court. Defendants used the post-trial hearing, however, to once again present much of their theory with regard to highest and best use. The testimony actually offered in no way substantiated defendants' claims with respect to inaccuracies in the various maps. It was entirely uncertain then, as it is now, which maps defendants referred to and in what manner they failed to adequately inform the jury. The trial court found no prejudice in regard to this claim, and from the incomplete record before us, we agree.