This is an appeal by the Government from a judgment adopting a Commission's report and award in a condemnation proceeding. The Government's essential objection on the appeal is to the Commission's limitation on the proof by the parties to four comparable sales for each side, and the resulting exclusion of proof of three additional sales offered by the Government. The Commission's ruling was in furtherance of an instruction of the Court to the Commission generally limiting such proof to three comparable sales, subject to modification by permission of the Commission. This restriction on the Government's proof is said to be error as a matter of law, and arbitrary and prejudicial.

The action was brought by the Government to condemn the fee interest of approximately 521 acres of land deemed necessary for the Melvern Dam and Reservoir Project. The District Court assigned the case to a Commission pursuant to Rule 71A(h), Fed.R.Civ.P. The instructions given to guide the Commissioners included the following provision:

"25. The court directs that a party may offer in evidence not more than three sales which it wishes the Commission to consider as a comparable sale unless permission is granted by the court or the Chairman of the Commission, prior to the hearing, to offer evidence of more than three sales."1

By pretrial stipulation it was agreed that the highest and best use of the property was for general grain and livestock farming, including dairying. It was further agreed that the property was composed of crop land, pasture, roads, rivers, ditches and a homesite. From the outset the Government requested the right to use six comparable sales as evidence of value, and this request was one of the matters on which the Commission was requested to rule.

Before the Commission hearing the Government renewed its request to use six comparable sales instead of three as indicated by the standard instructions to Commissioners. The Chairman of the Commission first assumed there was no objection and ordered that each party might submit evidence as to seven comparable sales.2 However, in so doing his Order referred to the extreme difficulty for the Commission to follow evidence involving seven comparable sales and urged the attorneys to prepare exhibits and clear and understandable proof of such sales.

The appellees objected by letter to the Order, stating that it was incorrect that they had agreed with the Government on the offer of evidence on seven comparable sales; that the Court had only allowed five such sales in evidence in the past on motion; and that the Government request was not timely. The Commission thereupon limited each party to four comparable sales and permitted the Government to seek immediate review of its ruling by the Court, which was not done. Instead at trial before the Commission the Government again requested the right to offer evidence of six sales, which was denied. At the close of the hearing the Government made its offer of proof concerning the additional sales that would have been used, if the Commission had so permitted. See note 6, infra.

The Commissioners' report awarded compensation of $149,670. It summarized the proof and rejected one of the Government's sales on the ground that it was not comparable.3 The Commission found that the Government witnesses had placed values of $105,000 and $109,000 on the subject property, and that the landowners' witnesses had valued it at $177,300 and $182,560. The Commission admitted and considered proof by the landowners of four comparable sales, which were discussed in the report. The Government objections to the report restated its position on the limitation of its proof, among other things. The District Court overruled all objections and adopted the Commission's report and this appeal followed.

The Government's basic argument is that the limitation on the number of comparable sales was error as a matter of law, and arbitrary and prejudicial. The Government argument runs that the restrictive instructions to the Commission go directly against a reasoned and liberal standard of admissibility that a court should not limit evidence "* * * until it becomes obvious that further testimony would be merely cumulative, hence of no probative value." Chapman v. United States, 169 F.2d 641 (10th Cir.), cert. denied, 335 U.S. 860, 69 S. Ct. 134, 93 L. Ed. 406. And the Government says there was no showing that the other market transactions were cumulative but that they were rejected without being considered by the Commission or the Court.4

As this Court has recognized, evidence of comparable sales may be admitted as substantive and direct proof of value or to sustain the opinion of an expert on value. United States v. Featherston, 325 F.2d 539, 542 (10th Cir.). In the Featherston case this Court held that the Commission had erred in excluding proof on comparable sales to show the basis of an expert's opinion, since "* * * the commission in this case did not exercise any discretion. Instead, it held as a matter of law that the evidence was not admissible." Id. at 543. The opinion recognized, however, that in determining the extent of proof of comparable sales "* * * the court in the exercise of its sound discretion can assure that the evidence does not go afield." Ibid.

We do not agree with the Government that the general instruction by the Court to the Commissioners referring to admission of not more than three sales was error as a matter of law. Instruction 25 provides a guideline of considering not more than three sales but it also recognizes discretion that the Court or the Chairman have to grant permission for proof of other sales, as discussed above. Therefore, we are satisfied that the instruction itself as a guideline is in harmony with the principles of United States v. Featherston. Such a limitation on proof may be reasonably applied with a sound exercise of discretion by the Commission Chairman or the Court, just as reasonable limitations may be placed on the number of expert witnesses permitted to testify on a particular subject. Ruud v. United States, 256 F.2d 460 (9th Cir.), cert. denied, 358 U.S. 817, 79 S. Ct. 28, 3 L. Ed. 2d 59; Chapman v. United States, 169 F.2d 641 (10th Cir.), cert. denied, 335 U.S. 860, 69 S. Ct. 134, 93 L. Ed. 406; Montrose Contracting Co. v. Westchester County, 94 F.2d 580 (2d Cir.), cert. denied, 304 U.S. 561, 58 S. Ct. 943, 82 L. Ed. 1529; American Stove Co. v. Cleveland Foundry Co., 158 F. 978 (6th Cir.); 6 Wigmore on Evidence § 1908 (3d ed. 1940); 2 Lewis Eminent Domain § 653 (3d ed. 1909); Annot., 5 A.L.R. 3d 169, 181 (1966).

However, it does appear that the pretrial Order of the Commission denying the letter request of the Government to introduce more than four sales was made solely on consideration of the letter and without considering the comparability of the additional sales, as required by the Featherston opinion.5 It requires that a sound discretion be exercised in determining the limitations that may be placed on the extent of proof to be offered, giving consideration to the principle "* * * that evidence of comparable sales must relate to properties that are so similar as to furnish an adequate basis for comparison * * *" United States v. Featherston, supra 325 F.2d at 543. We feel, nevertheless, that no prejudice resulted to the Government. The District Court had before it the transcript, including the offer of proof by the Government made out of the presence of the Commissioners at the end of the hearing. On consideration of that proof, the Commission's report and the Government's objections, the Court observed that "To permit the record to be encumbered by more sales that are not in fact comparable would indeed be an abuse of discretion." See note 4, supra. By so doing the Court gave consideration to the Government position in the light of the principles of the Featherston case, and we are satisfied that there was a reasonable basis for the Court's conclusion that there was no evidence that the additional sales were comparable.6

Therefore, we conclude that the Government has not shown that the exclusion of proof offered by it was arbitrary or prejudicial and are convinced instead that there was a reasonable basis for the overruling of the Government's objections and the adoption of the report by the judgment.

Affirmed.