The record-union., 1891-02-21

to confuse and mislead the minds of the
jury. Or course, as was said in Boom
Company VS.. Patterson, it is perhaps inn
+ possible TO formulate Il rule to govern
the appraisement Of property in all cases;
but il is easy and safe to pursue the course
pointed ont by the court in l.. r. j. r. r.
vs.. Woodruff. Let the witnesses in di-
rect examination state their opinion as TO
the market value of the property, .'hav-
ing regard to tue existing business wants
OF the community, or such as may be
! reasonably expected i'll the immediate
future" and support their estimates by q
description of the property, giving its To-
cation. surroundings and advantages for
any particular use, If it have any. Oppos-
| ing counsel should then be allowed to
make every inquiry touching the prop
erty which one about to buy it would
feel it TO his interest to make" and Tor
the information Of the jury, and to test
| the value OF the opinion. given, be per
mltted the widest latitude in cross-eXam-
! nation.
The following authorities establish the
| proposition that the compensation to be
| awarded the owner of the land condemned
cannot be based upon the value OF the
property to the person or company in
| charge Of the public use. nor by its ne
| cessities, and that it is not proper to take
| into consideration the profits which may
result from the use of the land, especially
where the profits depend upon the eX-
! penditure OF large sums of money in car
! rying out the contemplated enterprise:
/ i. w. Canal Co. VS.. Archer, 9 Gill d j..
/ Nd. 48l; Gardner VS.. Inhabital1ts Brook
| line, l27 Mass. 35S; Burke VS.. Wiggles-
/ worth, III Id. 302; Reading r. 4. Co. VS..
! Balthasar, II Al. Rep. sis; Dorian VS..
] u. B. w. r. r. Co., 10 Pa. st. SO; $. d c..
! K. K. Co. VS.. Galgiari, 10 Cal. 139.
/ Appellants contend that the court
! did not err in refusing to strike
out the testimony objected to, be-
to express an opinion as TO value,
and the reasons for such opinion canonIy
affect the weight to be given to their.tes-
/ timony; but we think that where II wit
ness bases his opinion entirely 1tpos1 an
competent and a1odDiiSSible matters, or
shows that such matters are the chief
! clements in the calculations which lead
! him to such conclusions, it should be re-
jected altogether. Or. and p. r. r. Co.
| VS.. Balthasar, Is All. Rep 294 J
| 1t clearly appears that the witnesses
/ referred to based their estimate of
the value of the property upon
an anticipated Investment OF a large
amount OF money in an extensive system
| OF water works, and founded their opin-
ion largely upon hypothetical expendi-
lures and receipts of money, and an in
creased demand for water. The court.
| too, adopted the same erroneous rules,
and under its instructions the Jury must
have found such price as insthe opinion of
| the witnesses the land might bring. or
probably would bring at some future pc
rlod, II plaintiff Or another in its situa-
| ton should extend the works as contem-
! plated by the witnesses.
1t IS claimed by the appellants that the
| plaintiff ought not to be heard to complain
OF the ruling of the court in admitting
! HD foe i L
Witnesses had given testimony of the
same character; but as was said when
the case was here before, ''the introduc-
ton OF irrelevant evidence upon one side
without objection does not justify the
Introduction of irrelevant evidence upon
the other side" {See, also, Walkup VS..
Pratt, 5 Har. & J. SOY But, if the ruling
of the court could be sustained for the
| reasons urged, the court in some of its in
struciions to the jury. as stated before,
adopted the same rules as those followed
by the witnesses i'll their testimony.
The court instructed the jury, at the re-
! quest OF defendant, that in considering
the weight to be given to the opinions of
witnesses as to the value of the land for
| reservoir purposes, they might take into
consideration, amongst other things, the
character and capacity of the works neces-
| sary and proper for the utilization of the
defendants land for reservoir purposes.
the quality and condition of the lands ir-
rlgable from the reservoir, the need of
| such lands for irrigation in order to make
them habItable and productive, together
| with the needs of the inhabitants of cities,
and towns within reach of this system of
water works, and appearing on the 18th
of June, 1887, to be dependent upon it for
water: the proportion achich tie defend
dntS' land bears to Tie remainder of the
| ptdt7ati6 s RESERVOIR; the quantity of water
IS -cI lNvrfI fI,c.,t te.r
of the defendants land az connection aoith
! the adjoining JG2.d Of plaintiff o.,
| other persons, and the UdLMe of such aCate1,
| as O Sdtdbie commodity an lie Rcighborhood
| t11ontdry TO this reservoir on the 18th dan
! OF June, 1857; also, that in considering
the value Of the land for reservoir piIr-
poses, as. guide to ascertaining it's
market value, the question was not what
1t was worth to plaintiff as owner OF the
remainder of the reservoir and dam site.
in June, 1887, doing business as they pro-
posed to do, but it is, what was il worth
to any reasonable person able and willing
to buy, and Intending 10 acquire On pu7-
chCtse or condemnation the dam site and the
remainder Of the reserUoi1, and TO use the
a0hote Jo1' supplying acatey for public use
0Oer The territory tributary to tiiS SttsteH.
that the jury had right to consider, if il
De TACT, the proximity OF the land to AN
eligible dam site, and its availability for
dam site and other adjacent lands
The court had fairly and fully in
structed the jury at the request of plant
III on the subject Of value. but these in
struchons, given at the request of the de-
1endants, were erroneous, because they,
IN effect, Endorsed the methods of calcu-
lation employed by the defendants wit
nesses, and informed the jury-at least
the jury undoubtedly so understood it
that they might find the value TO be what
the land was worth to the plaintiff, or an
other in its situation, and that this might
be determined by calculation of the
probable profits from sales of water and
water rights at prospective prices. The
cost OF works necessary for the utilization
OF the land for reservoir purposes was an
element IN the calculation as conjectural
ana speculative as would be the cost of "a
railroad and running stock necessary for
the operation thereof, in fixing the value
of land condemned for railroad purposes.
The quality and condition of the lands to
pe afected was as foreign to legitimate
estimate of the market value OF tie land
as the size and growth of a city on the
line OF the railroad would be in fixing the
value of land taken for railroad purposes.
Inc necessities OF the public are never
iaken into consideration in fixing the
xaioe. va Ihey are an element which must
oe proved before the land can
be taken. but are never an
element of the question as TO compensa-
ton. The proportion which the defend
ants land bore to the remainder of the
PLAINTIFFS reservoir, and the quantity of
water which would be stored by use of
the defendants land in connection with
the land OF plaintiff, and the value Of the
water as salable commodity, were
clearly improper elements to be con-
sIdered. (T. W. Canal Co. VS.. Archer.
and other. cases, Sa.prd.) The question
was not what the property was worth to a