The record-union., 1891-02-21

person intending to acquire il and tho
dam Site and the reinainder of the rcser-
voir by purchase or condemnation for the
purpose OF supplying water over the
territory tributary TO the system, but
what was the market value OF the prop
erty itself. In other words, what the de-
fendarts could have obtained for their
land if it h9d been offered for sale in The
market, reasonable time boing given
within which 20 make the sale. THO
plaintiff must compete in the market
with bono ftle purchasers generally. but
It's necessities cannot be taken advantage
OF. SO far as the value Of the land in
controversy may have been increased 70
purchasers generally by the construction
and use of the plaintiffs IS dam and reser-
voir, or as part OF the entire reservoir
site, such fact should be considered, but
tho value Of the land when used IN COLI
uectlon with the plaintiffs land cannot
be taken as q criterion. for this would be
taking the value TO the plaintiff as tho
measure OF compensation. The jury had
right to consider the fact, in determine
ing the market value, that the land in
controversy was III proximity to q dam
site. aud to consider its adaptability for
reservoir purposes, and TO determine
whether or not!itS market value had been
enhanced by improvements put upon adj
joining. property, but for the reasons
stated its adaptability, for reservoir pur-
poses, should not have been considered
yin connection with such dam site, and
other adjacent lands.'
Respondent has requested a decision
on every one of the seventeen assign
ments OF error in the statement; but, in
view OF what we have said regarding the
rulings Of the court and the instructions.
1t seems unnecessary to do so. 1t is
sufficient to say tnat any facts showing
the nature of the land in contro-
versy, and its adaptability for reser-
Voir purposes, may lie shown. The
area of the water shed, and amount
OF water, were matters proper to
be considered, for q reservoir would be
useless without water. That there was
land 1rrigable from the reservoir, and
cities and towns which were being sup
piled with water from wells were mat
ters, not only tending to show that it was
practical reservoir site, but bearing di-
rectly upon its value. The condition of
the property. the uses to which it may be
put. having regard to the existing adj
vantages for making practical use Of the
property, and such advantages as may be
reasonably expected in the immediate
future, are all matters for consideration
III estimating the value of the lands
Gloom Company VS.. Patterson, supra;
but to attempt to ascertain the value by
estimating the cost of works necessary
for its use for a particular purpose, the
cost OF operation, prospective sales and
tStlil1tlSu pfOALS. Increased NtGnlandS
through growth of population etc, re-
qulres "a degree OF refinement in tho
measure of values which seem to us
totally incompatible with the gross esti-
mates Of common life. The gross
estimates of common life are all that
courts and juries have skill enough to use
as & measure OF value. All other meas
ures are necessarily arbitrary and fanci-
tul." (Searle VS.. l.. d. B. r. r. Co., 80
Pa. ST., p. 6a.)
The court did not err in oyerruling
plaintiffs objection to the question asked
Mr.. Schuyler during his cross-examina-
ton. 1t was proper to show that he had
at some prior time entertained different
opinion as to the value OF the property.
Some OF the witnesses on both sides
never saw the land in controversy until
several years after the date of the sum-
mons, at which time the right TO COM
pensation and damages accrued. We
think their opinions ought not to have
been received.
we think that the company should pay
the costs OF this proceeding on account of
the manner in which it opened and
proved its case at the last trial Section
1855 OF the Code of Civil Procedure
lowed or not, and, if allowed, may
be apportioned between the parties on
the same or adverse sides, in the dis
cretion of the COURT Mr.. Lewis, in his
work on Eminent Domain. paragraph
$50, in speaking of the question of costs,
says: 1T seems to US that courts should
be guided by the following principles and
considerations in the matter: BY the Con-
stltution the owner is entitled to Just
compensation for his property taken for
public use; he is entitled to receive this
compensation before the property is
taken or his possession disturbed; if the
parties cannot agree upon the amount. it
must be aScertained in the manner pro-
vided by law, as the property cannot be
taken until the compensation is paid. and
rs it cannot be paid until it IS ascertained,
the duty OF asceltaining the amount is
necessarily cast upon the party seeking
to cortdemn the property, and he should
pay all the expenses which attach to the
process. Any law which casts this bur-
;ien upon the owner should, in our opin.
ion, be held to be unconstitutional and
void. IF the statue gives he con-
denllling party right of appea! it cannot
cast the costs upon the owner, even If the
assessment is reduced" (See also in TO
Nyws and Is. X. h. Co., 81 n. Y. 2S7.)
Whatever may be the constitutional
rights of the parties. we think III this ease,
under Section 1855, that it viii be proper
exercise of discretion 70 require the COM
pany to pay costs.
The order is affirmed and the court bo-
low is directed to tax the costs of the last
trial, and of this appeal, against tho
plalntlif. PATERSON, j,
We concur:
MCFARLAND, j.,
HARRISON, j.,
GAROUTrE, j.,
SFIARPSTETN, J.