The record-union., 1891-02-21

tnat the plaintItt'S S brother and manager
of the hotel, w. Fl. ddarron, had no
authority to act for plaintiff.
Judgment and order denying the mo-
ton for neW trial affirmed.
MCFARLAND, J.
We concur: ~,
SsHARPsrE4IN1 s75 RPS e j., =
Filled February ii. 1871
Appeal from Superior Court of San
Diego County-John r. Aiken, Judge.
For appellants, Hunsaker IL Britt and
j. e. Deakin.
For respondents, Luce, Mcdonald &
Torrance, VIM. +. Herrin, of counsel.
IN BANK.
SAN DIEGO L. Il 7 Co.,
NEALE, EFT AL, Appellants.
This is a proceeding to condemn land
for reservoir purposes. On the former
appeal as Cal. So, the Judgment was af-
firmed as to all the issues except the issue
as to the value OF the land. The cause
was remanded for n new trial of that
issue, trial was had, and q Judgment on
verdict for $l22, ,657 80 and costs Of suit
was entered in favor of defendants; bat
the plaintiffs moved fora new trial, which
motion was granted, and the defendants
have appealed.
1t would be sufficient for Us to say that
as the order appealed from is one Gr0q1t-
321g a new trial, and as the evidence as to
the value of the land condemned is con-
tlcting, the decision oE,the court below,
III the absence of q showing of an abuse
OF discretion, Will not be reversed. This
rule has been so many times announced
1t would be q work OF supererog&tion to
eite authorities in support of it. AS some
OF the rulings Of the court below at the
trial, in our opinion, were erroneous,
however, we deem it advisable to refer to
them for the guidance of the court at the
next trial.
When the motion for q new trial was
called for hearing, the defendants OBJ
Jected to the same being heard ON the
ground that the court had no jurisdiction
to hear or determine aSCtuestion of fact as
to value. The same objection, although
somewhat different in feEIn, was presented
on the former appeal and overruled. (7S
Cal, 651. The burden OF proof as to value
was on the defendantS. &c. 5. r. r. Co.
VS.. S. p. r. r. Co., 81 Cal. 63; Monterey
County VS.. Gushing, So Cal. 500. 1t was
their duty to allege and prove the value.
Both parties assumed at the trial that
there was an issue as to value. the
case proceeded to trial and judg-
ment upon that assumption and the
defendants cannot now complain.
situation with respect to the reservoir of
plaintiff, is shown inThe opinion filed on
the former appeal. Us Cal. 66.) 1t was
there held that the court erred in allow
ing defendants to introduce evidence of
value based on the fact that plaintiffs
dam was already in course of construc-
ton, or upon the circumstance that the
land susceptible of irrigation from the
reservoir would be enhanced in value
by having irrigation facilities
afforded to it, y $ ~ Where there
is no actual current rate of price. and
where III consequence the court must ar
rive at the value from q consideration of
the uses to which the property may 'be
put, 1t seems mOnstrotis TO say that the
benefit arising from the proposed i'm
proyement is to be taken into considera-
ton as an element of the value of the
land" The court held that the present
value Of the property for prospective pur-
poses might be given, and that it was
proper, therefore, to show the value of the
property for reservoir purposes, although
II had never been used for such purposes
The court below, however, in it's rulings
and instructions at the last trial, seems to
have entirely misconceived the scope and
effect OF our former decision. Instruc-
tons We're given, based upon facts so re-
mote from the real issue'in the case, as to
misiead the jury on the question of dam
ages.
As stated before, it was decided on the
former appeal, and is the law of the case,
that the value of the land for any special
purpose may be taken into account as one
of the elements tending to show its
market value. The fact that the land is
suitable for such purpose, and q chance
exists that it may some time bring an en-
hanced value therefor, has a tendency to
increase its market value, and may prop
erly be considered in determining what
its present market value is. In this con-
nection it is proper TO say that the learned
judge who wrote the opinion in Alloway
VS.. City of Nashville, (SS Tenn. 5l0), evi-
IDENTIFY misapprehended our decision in
this case on the former appeal.
We did not hold that the value of the
land for reservoir purposes was measure
OF damages, Independent of any other
consideration or element of value. On
the contrary, the opinion distinctly states
that the market Udtte is to be the meas
ure OF damages. and that evidence Of
value for a special purpose is only to be
considered as an element of the question.
Neither the value in use to the plaintiff
nor to the owner is to govern. Indeed, to
guard against mlsapprehension, the court
was careful to say: The word UGtue is
used in different senses. For
the purposes of the law of eminent do
main, however, the term has reference to
tItS Ndilic III tACldhGG OF market value.
Inere are some cases which seem to hold
that the value in use to the owner is to be
taken, If it exceeds the market value. But
1t Will generally be found. on careful ex-
animation, that such cases either relate to
the damage accruing to the owner from
the taking, and not to the value of the
property itself, or overlook the distinc-
ton between the two things. The con-
Sensus of the best considered cases is, that
Tor the purposes in hand the value to be
taken is the market value. The
problem, then, is to ascertain what is the
market value. From the neces-
sity of the case, the value must be arrived
at from the opinions OF well-informed
persons, based upon the purposes for
which the property is suitable.
W llat is done is merely to take into con-
sideratlon the purposes for which the
property IS suitable, as means of ascer-
tanning what reasonable purchasers
would in all probability be will
ing to give for it, which, in a
general sense, may be said to be
the market vaIue.'' In the Tennessee
case the court, not having the record in
this case before it, fell into the error of
saying that, in that case 1t was held that
1t was competent to prove the value OF the
land for q reservoir site, and to make that
value the measure OF damages, independ-
ent OF any other consideration or element
VI FesittC- 4 1e llIdIh6t Fdlue Is the IiLl-
mate factto be determined by the jury.
If the land has value for any particular
purpose, its market value may
be thereby enhanced. If its value
tor one purpose is to be ex-
Guided. why not for another? A va
cant lot in city cannot be condemned
and taken at it's value for agricultural
purposes. If land which has been used
only Tor pasturage contains valuable
mineral deposits, it cannot be taken for
public use without reference to what