The record-union. [volume], February 21, 1891, Page 7, Image 8

About The record-union. [volume] (Sacramento, Calif.) 1891-1903

Image provided by: University of California, Riverside; Riverside, CA

                
SUPREME COURT DECISIONS.
[Filed Feb. 12, 1891.] "' ■ /
Appeal from Superior Court, San Diego
JouMy— John K. Aitken, Judge.
For appellant, J. F. Cfewdery.
For respondent, Shaw it Holland.
DEPARTMENT TWO.
The Giant Powder Com-]
pany, ApjK'llant.
m vs. { No. 13,900.
The Sax Di k«o Flvme I
Ookpamt, Respondent. J
This action was brought against Joseph
Johndrew fan original contractor" for
the San I)iego Flume Company) and that
corporation, to recover a judgment for
the value of materials furnished the con
tractor, which were us.-.i in his work
upon the structure for the flume com
pany, and to enforce a material man's
lien upon the structure, under Section
11K! of the Code of Civil Procedure.
The evidence anil the findings indicate
that, after the Oth day of
June, A. 1). 1887, there existed A
valid contract between the contractor and
the owner. (Tr. fols. 160-181), so that as to
ail materials furnished after that dai-3
the plaintiff could file its lien claim, by
virtuu of the existence of the contract.
The court below seems to have pro
ceeded under this impression, and to ha-re
based it* decision, which was against tl»o
plainti!V, so far as the right to enforce its
lien wa-s concerned, or any other claim
against (he Flume Company, upon the
UMSorythat its claim of lied had been
tiled before the acceptance, completion,
use or occupation of the structure, ac
cording to the terms of Section 1187 of the
c ode ot Civil Procedure, as amended in
18«7. (Tr. fol. 179).
The plaintiff appeals from the judg
ment against it in favor of the Flume
Compi'ny, and from an order refusing a
new trial.
poes. the evidence sustain the findings
mat the plaintiff filed its lien claim be
fore the defendant had accepted, used or
occupied the work which the contractor
bad [eft in an uncompleted state?
l tir- work which the contractor was to*
penbna was the grading of a ilume bed,
sarmce ditches, and tunnel approaches,
lrom the defendant's diverting dam on
tne San Diego River to its proposed cfty
ra i i voir near San Diego, and the excava
tion of about three thousand lineal feet of
tunnels, and lining the same with
masonry, and also timbering same in ac
cordance with the plans and specifica
tions. (Fols. 64-66.)
'11 is \i will be observed the contractor
w Dot to complete the flume, or" to make
complete the proposed water works of
the defendant. But only to prepare the
place upon which the ilume was to be
thereafter placed. He was to lav the
foundation, as it were, on which tho
flume was to rest. In this respect the
work to be done was somewhat similar to
the taring of a foundation on which to
erect a house.
It appears that about August 0,1557,
tho contractor abandoned his contract,
and ceased all work thereunder; that two
or three days after that the flume com
pany took possession of the iiume line
upon which the contractor had been
working, and proceeded to complete the
work a iiich lie had left unfinished. {Fols.
103-i. 1()7). But tise court finds that it.
neither used nor occupied the tunneling,
grading and work, which Johndrew had
agreed to do. (Fol. 107). "Nordid it on or
about the 10th of August, 1887, or at any
time, or at aIL ever accept the structure
which Johndrew. had been engaged in
constructing for it. or accept tho uncom
pleted part thereat" (Fol. 165).
The part of Section 1187, C. C. P., here
involvod reads: «* * and in case of
contracts luo occupation or use of the
building, improvement, or structure by
the owner or his representative, or the
acceptance by said owner or his agent of
said building, improvement or structure
fiv.i'A be deemed conclusive evidence of
completion."
The provision seems to have been en
acted In the interest of and for the better
prelection of lien claimants like the
plaintiff.
The words of the statute "occupy or
use" or "accept" have reference not only
to tne occupation, use or acceptance of a
dwelling or other house, bat Lossy kind
of structure, building or Improvement,
ifc which the materials oi' a lien claimant,
have been used. What then is to bo
deemed their meaning, with regard to the
imattci in haud?
LTho facts appear to be that the con
■ or, on or about the !>th of August,
pW. was unable to go on with his work.
Then, or a day or two thereafter, the
defendant made an arrangement by
which the contractor was to be ab
solved from his obligation under the
con! net, which was to he abro
gated, and the defendant was to pay a
certain proportion of his debts, on condi
tions, not including, that of the plaintiff,
and to have and retain certain property
belonging to the contractor. It thereupon
i Jook control and possession of the work,
Aid proa . ded to complete it. (Fols. 201,
iKi, 5207, 263, 270, 220, 255.)
The defendant having gotten rid of the
contractor by this arrangement, domi
nated, controlled and applied to its uses
Ithe uncompleted work of the contractor,
in the prosecution of which the materials
of the plaintiff had been used. It occu
pied the work, so far as could be done, in
Its then state. I'.ut It used and occupied
his work after the rescission of its <•.,;;
tract with the contractor, making this
work subservient to its purposes in com
pleting the structure, it took from the
contractor what he bad done of the work,
and also certain property of his, released
him from bis contract, am! agreed to set
tle some of his debts. ( Fols. 230, 232, 24!. |
If" it released the contractor, took his
twork and some of his pronerty, an«i
agreed to pay some of his debts, this
Would appear to be in a certain sense an
acceptance of his work. It did not occupy
and use the work in the sense that it was
complete according to the terms of the
contract, but, after the contractor was re
leased, it used and occupied it as the con
tractor had done before. His responsi
bility on the contract to the defendant
was ended, the latter took his work and
father property and proceeded under this
agreement to use and occupy the work,;
agreeing at the same time to pay a certain
proportion of tire contractor's debts.
That is. it took and used, under agree
ment with him, what he had left, and ab
solved him from his contract,
The lien claim was filed on the oth of
September, 1887, within thirty days
after the acceptance, use and occupation
above stated.
L"n<lcr out view of the stajpte this was
sufficient, the contractor^? connection
with Hie defi'udMi:: -was completed ami
ended, the.defendant accepted the work
he had done, used and occupied it so far
r.s it was capable of bung so used or occu
pied. Toe findings are not supported by
the evidence.
We think the judgment and order
should be reversed and so advise.
_. Foote, C.
>V c concur:
Van. i.ikf, C,
Belcher, C.
the coukt.
For the reasons given in the foregoing
opinion the judgment and order are re
versed.
ooxrcusßixa onmoHs.
I concur in the judgment of reversal
soleiy upon the ground that, in my opin
ion, the main points in controversy were
settled against respondent on the former
appeal '7- CaL 198), and the law of the
case applies. Otherwise I would hold
•that the hen of appellant was premature.
And where the question is open I could
not concur in the doctrine that there can
be a ben for powder exploded in blasting
for the foundation of a house or a flume'
'•Mat. rials, used in the construction,"
as employed in the mechanics' lien law
mean*. in my opinion, only such material
things as go in, and become part of, the
building or structure. In the eve of
justice a merchant who deals in lumber
or hardware has no-more right to a lien
than a merchant who deals in potatoes
or flonr, or sugar; and the former have a
hen only as jv legislative privilege. The
language should not be strained for the
purpose of enlarging the privileged class.
The appellant has no powder in the
structure, and never had. It merely ex- i
ploded some there. M.'Faiu.axd, J.
I concur in the judgment, and in the
foregoing opinion of Commissioner Foote
The question whether powder exploded
in the work of constructing a Hume or
tunnel may be regarded as~a part of the
"materials used in ths construction," is
SACRAMENTO DAILY KECOBD-UyiQy, SATURDAY, PEBRTJAET 21 1891.-EIGHT PAGES.
not involved in the disposition of this
appeal. ■ i)i:rLvvEX, J.
[Filed February 10, 1891.]
Appe.il frorti Superior Court of-Santa
Clara county—John Reynolds, Judge.
For appelWnte, i-'rar.k M. S. Stono.
. I'or respondent, Charles B. Younger.
DEPARTMENT OXE.-^
In tete Mattek ok the)
Estate of [ No. 13,062. '
Wit H. Moore, Deceased, j
The special administratrix- of William
H. Moore, deceased, having iilcilher final
account lor settlement, the heirs of the
decedent filed objections to the allowance
of certain items therein, and the court,
after hearing the parties thereto, settled
the account by allowing a number of the
items objected to, and disallowing the re
| mainder. From this order the heirs have
appealed to this court.
The chief objection to the action of the
court i* it* allowance for certain expen
ditures in the repairs of the Pacific
Ocean House. Prior to making these re
j pairs the special administratrix had ob
■ tamed an order from the Superior Court
allowing her to expend a certain sum of
money for said repairs in which was des
ignated the particular repairs to be made,
and the amount allowed for each, and
, which also declared "the above amounts
i being the full costs of Repairs which said
i administratrix is authorized to make."
! Alter obtaining this order she proceeded
with the repairs, a it! completed some at
: less expense than she was authorize. I to
i make, while in others she expended more
lii;:n was permitted by the order; and
I she also mads other repairs which were
j not included within the order; so that the
total ;.tn >ant expended by her was iv ex
cef - of the amount allowed by the order.
It is urged by the appellants that the
court was not authori/.ci! to allow any
items in her account for expenditures
which were not embraced within its pre
; vious oiJer allowing her to make the re
paixs.
The office and duties of a special ad
ministrator are very similar to those of a
receiver in equity. Each is appointed by
the court to take charge under its direc
tions of property in litigation, or which
lis involved in the proceedings before it,
; with a view to its care, and preservation
i for the parries to whom the court may
; ultimately decide that it belongs. The
I powers and duties of each are special and
I limited to such as are defined by statute,
i or expressed In die order of his appoint-1
j men., or which be may from time to time
j receive for the purpose of more eii'ectu
! ally preseryingtbe estate intrusted to his
'charge. If it becomes accessary during
; his management to make any repairs his
■;;.. nditares therefor must be sanctioned
by the court appointing him, either by
order or by subsequent ap
vprovaL before .the can reimburse himself
• from the funds of the estate. A prudent
person would obtain from the court an
order therefor boioro naQtung such re
pairs, but it is not an indispensable
requisite that hr> should do so. If he is
| -willing to forego such protection, and to
;viy upon his belief that the court-will
ratify bis acts, there is no rule of law
I which v.-ii! deprive the court of the power
, to reimburse him i:' his acts and expendi
tures are approved, ua Tempest vs. Ord,
I (2 Mer. 35), Lord Bldonsaid that: "Form
j erly the court never permitted a receiver
. to ry out money without a previous or
! tier of the court, but now, when the re
ceiver had laid out inon; y without such
| previous order, it was usual to refer it to
j the Master to see if the transactions were
beneficial to the parties, and if found to
be so. the receiver was allowed the mon
ey so Laid oat." This rale was followed
;,in Adams vs. Woods (15 CaL2O6) where
| the action of the District Court in disal
l.»wing # certain payments by the receiver,
on the ground thut they had been made
without any previous order of tho court
was reversed. (See, also, High on Re
ceivers, Section iso; Hynes mMcDer
mott, 14 i)aly KM.i
...■do not think thatthe items in the
accountof the special administratrix for
tho repairs made by her should be disal
loyed merely because she had not ob
tained a previous order to make them, or
beoatise she had expended more than .she
I was allowed. It was quite as competent
for the court to approve ht-r disburse
nieii.'ti Bar rnpiiirs.ij):ii!ti. without ;i pjwi
ous order as it wns to order in advance
that the repairs should be made; and if it
was competent for the court to allow the
items iui her account without a previous
order having been obtained therefor, it
was equally competent to allow such re
pairs as she might have made in excess of
the amount allowed by tho order. In
either case tho court" must determine
hother under all th? circumstances the
pairs were necessary, and the expendi
ires reasonable. Thoc matters must of
ssity be left to the discretion of the
•fudge In settling the account, and unless
lit appeals that such discretion has been
abused, it is not subject to review. The
j court in the present case beard testimony
offered by the respective parties in refer
ence to the contested items, and after ex
amining it we cannot say that it was in
sufficient to support his order. Neither
can we say that the court improperly
allowed the items for the expenses of a>
norse and buggy, which were objected to
! by the heirs. For aught that appeals in the
i record they were expenses necessarily
j incurred in her management of the es~
tate. (C. C. P. Section 1010.)
Appellants also object to the allowance
to the special administratrix of commis
sions, upon theestete that cam© into her
I hands. The Code of Civil Procedure does
j not make any special provision for the
compensation of a«pecial administrator, ■
I but leaves it. u> the discretion of the court ;
in ;b'> settlement of his account. "We
! cannot say that it was improper for the !
court to take the. rate of compensation
fixed by the statute for an administrator
as the standard for determining a proper
allowance to bo muue to the special ad
; mmistratrix in the present case. To the
objection that by t;. , course an estate
may be subjected i the payment of
double commissions, it is sufficient to
say that the court having charge of the
estate has the power to prevent any Im
provident diversion of its funds durinir
I administration.
The order appealed from is affirmed.
_ Harrison, J.
I concur:
(JAKOUTTK, J.
COISCURRIN-O OPIXIOX.
I concur. Some of the items in the ac
count .seem on their face to show an at?
tempt to improve tho property, rather
than to preserve it; but as the witness
< !ope testified that all the work done was
necessary to put the house untenantable
; condition, and as there is no evidence to
the contrary, except an inference which
may arise from tne apparent nature of
the work done, it cannot be said that the
order ot the court is not .supported by the '
evidence.
I think the burden of proving the ne
cessity of the expenditures rested m>on
the administratrix as to all items objected
to, and if all the evidence introduced is in
the bill the court ought to have rejected
the item of buggy hire. The bill, how
ever, does not purport to contain all the
evidence introduced, and ii it did the
item referred to is so small that coun- !
sel for appellant would not desire a re
versal or modification on account of an
error as to it alone^ Patersox, J.
[Filed February 12,1591.]
Appeal from Superior Court. San Dico i
County—Thomas 11. liush, Judge.
For appellant, I. X. Thome, E. W
McKinstry, Oliver P. 5 vans, of counsel !
For respondent, Harry L. Titus, Henry |
M. Smith, George H. Smith, of counsel
IN BANK.
Lrco, Appellant, )
„ „ v*- , \ No. 12.566.
Toro, Uespondent. J
When this cause was first snhmitted the
judgment of the court 1 >clow was affirmed,
four Justices concurring. One of the '
Justices who participated in the decision i
was no; present at the argument, but it
wa- understood by the members of the
court at the time of the incision referred !
to that counsel for both parties had '
Stipulated at the hearing—as counsel had '
in nearly every other <-ase on the ealen- |
uar for the term at which this ease was
lio<4ra—that any Justice not present at j
the argument might participate in the do- j
cision. Upon a representation made by j
counsel for sapeßsai, after the decision, |
taut no such stipulation had been entered
into, and upon lheir motion based on the
ground that only three of the Ju
who heard the argument had participated
la the decision, the judgment was set
as! .■ . Since that time, the cause has
been heard and submitted several times
but no decision has been reached, owing
to a changa in the personnel oi the court,
and an equal division of opinion among
th>' six Justices qualified to act. At the
last October term counsel for respondent
moved that the judgment be affirmed, it
appearing that the JHBtieea qualified to |
act were equally divided ;u opinion.
It is admitted that a mere failure to
agree canuot have tho effect, ipso facto, of
an affirmance, for the Constitution re
quires the concurrence of four Justices to
pronounce judgment; but it is claimed
that it then becomes the duty of the
Justices who voted for a reversal to unite
with their associates in affirming the
judgment. The reason given for this con
tention is an argument ub inconcciiu::i<<.
It is said that if this rule is not followed
I the case might be continued for four years,
until a change in the; membership in the
court occurs: "and, then again, the same !
condition of things might still continue,
and this would require a further continu- j
ance; and thus it might happen that the i
case would never be decided."
Many English and American authori
ties are cited in support oi' the motion —
and no cases to the contrary have been
found by respondent; but the derisions j
must be read in the light of the circum
stances under which they were rendered. !
(Some of the cases referred to went off on
tho authority of statutes providing that in
cases of equal division among the J Bdges
the judgment should be affirmed, others
upon a rule following the practice of the
English courts and the others upon tho
ground of expediency. The case of Ayera
vs. Bensley [82 CaL 632) is hardly in
point. There a judgment had been ren
dered by a const it uuona! quorum, and it
was only on petition for re-hearing thai ■
division occurred. The rule lias
always been with respect to petitions
for re-hearing.s tint as many Justices as
are necessary to pronounce the judgment
must concur in granting a re-hearing or
the petition will be denied.
In jurisdictions presided over by
Judges holding for life or tor terms so
great as to make the probability of a
change in the membership of the cmut
remote, tho judgment of affirmance fol
lows a division ex necessitate reL In such
a case the decree dots not import a di
vision as to the nature of the judgment,
but as to the questions of law and act In
votvedinit. While the decree is a bar
to any subsequent .-.ction for M:e same
cause, no matters of law are decided aim
ii therefore possesses no dignity as a ju
dicial precedent, hut carries upon its (ace
I a badge which precludes any application
of.it in future under the doctrine of si we
decisis. The Judges simply agree that it
is expedient to finish the litigation. It is
a public expediency and is often ex
pedient also with respect to the interests
of the parties. Supported bythee< n
siderations, and the presumption of cor
rectness which always attaches to the
judgment of the court below, it is proper
and right that the Judges who were in
favor of a reversal should waive any in-
Bistence of opinion ana unite with their
associates in an affirmance of the judg
ment. This they <!o without in any way
relinquishing their convictions upon the
questions of jaw or fact involved
in the case. ltut here there are
| no such considerations as Induced the de
cisions.]]! the cases referred to. At the
time the motion was made it was <\ ideiit '
that before the time for the next term of
court at whych the cause would be heard,
three, at least, including the Justice dis
qualified to act — and possibly four of the
Justices—would bo succeeded by others
on the bench. Within a month after the
motion was made, and before an opinion
was written, an election occurred which
resulted in the choice o!" three Bew Jus
tices, all of whom are qualified to a
in deciding the cause <>n its merits.
Under these circumstances we thought at
the time the motion was submitted, and
still think, th.it the cause should be pre
sented*on its merits before the court as
now constituted.
The motion is therefore denied.
Patkesox, J.
We concur:
Bkatty, C. J.,
McFahlaxd, J.,
SSABPSTEm, J.
Although we were not present at the
argument of the motion, whieb was after
wards submitted on briefs.cotrasel for ap
pellant not being present at the
time the motion was made, we
have considered the point made
by respondent and concur in the
views expressed in the opinion of Justice
P-aterson. ■I A auiaoN, J.,
l.'KiJ.wr.N, J.,
Garol'tie, J.
[Filed February Ij., 18BLJ
Appeal from Superior Court, Kern
County—R. E. Arick, Judge.
For appellant, Jarboe, Harrison ct
Groodfeliow.
For respondent, Ilaggin .t Van Ness.
DEPARTMENT TWO.
M. L. H.vkkox, "I
Kespondeut,
vs. | -j. _
City of London Fire In- f °* L<i >ioi'
surance Com tan v ,
Appellant. J
This is an action to recover §5,000 upon
an alleged parol contract for the insurance
of furniture, etc., in the Southern Hotel,
at Uakerstield. in Kern County. The ver
dict and judgment were for plaintiff, and
defendant appeals.
The defendant is a corporation organ
ized under the laws of Great Britain, anil
does business in the Pacific States and
Territories under the management of W.
J. Cailingham, and its head office under
his charge is in San Francisco. It has
local agents in various cities and towns,
and on July 6, 188Q, its agent at Bakers
lield was, and for a long time had been,
H. A. Ulodget. On that date a small fire
occurred in the Southern Hotel, of which
plaintiff was lessee, and in which she
had a large amount of furniture
and other personal property. The
hotel was conducted and "managed
by her brother, W. H. Harron, who
was her general agent for that purpose
Being alarmed at the occurrence or the
tire her said agent went, to said Blodget in
theafternoon of said Ju!'y (Kh and told him
that he wanted an insurance on said fur
niture, etc., to take eff.ect immediately,
and that if lie could not obtain it from
him he would go elsewhere; and it is
clear that the jury ware warranted by the
evidence in finding that a contract of hi-
Burahce on said properly for One year for
$5,000 was then and ihere made by de
fendant with plaintiff; to take effect' im
mediately, provided IJ'iodget had the
authority to make sue!) contract for de
fendant. On the next day, July 7th, a
general conflagration, not originating in
said hotel, destroyed nearly the entire
town, including plaintiffs said property,
which was of a value exceeding J&000.
The real question iv the ease is: Was
the jury authorized by the evidence to
lind that Blodget had power to bind the
defendant? (There are some minor
points made about certain rulings of the
court, but we do not Hunk that in such
rulings any material error was commit
ted.)
Blodget had a written commission from
defendant, which certifies that he is ap
pointed agent of defendant '"with full
power to receive proposals for insurance
against loss or damage by fire in Bakers
field and vicinity, to fix rates of premium,
and to receive moU'Bys on behalf of the
City of London Fire I nsnrajve Company,
limited, of London, Kng., subject to toe
rules and regulations of said company,
and -such htsenteHoHM at ■>«•'// be given
ir< >m time to time by t be general agents of
the western department of the United
states." (The foregoing words in quota
tion marks are the only words in the in
strument which either grant or restrict
the powers of Biodget.) Appellant con
tends that Blodget's powers must be de
termined by the commission, and that it
does not include the power to accept ap
plications or to make any insurance con
tracts, while counsel for respond
ent contends that such power is
fairly included in the language of the i
instalment. We do not think it ;
neci BBary to determine whether the aim
ern scope of the ooiumi.ssion, properly ;
construed, includes the authority h«re
questioned; because, we think that in
this particular ease Uiere were such in
structions * '■■■ ** given * * *
by the general agents* of deiond
ant as authorized .Ulodget to make the
contract sued on. Harron testified that
at the time of the contract he a-ked Blod
»ei: "!>on"i I -vrant 11> make a written ap
plication?" and wa-s answered: "No, you
are not asking for 1 his insurance. You
are giving it to Mr. < .'ailingham upon hLs
asking lor it. s * * I have letters from
Mr. Cailingham ask :aig for that insur-
ance, consequently it is not necessary for
you to make a written application."
Blodgc-t testified that "I told him (I.lar
ron) tiiat 1 could furnish him iusuranc-e;
that Mr. CallinghflKn had asked for the
insurance on the furniture of the hotel;
I that I-had promised to give it to him,
and that I would send it to him,,
and that it would cover fr.Ki:
then." Furthermore. 'it appears in
evidence that defendant had taken
policies on the Southern Hotel:
that on April 11, 1889, in a letter to
Bhxlget about those policies, Callinj:ham
wrote as follows: "I dropped you a line
yesterday asking if there would be some
insurance required on ihe hotel
furniture and other contents of the
building. * • • If any iusnrauce
iis required as suggested I shall
be very glad to give my attention te it;"
and. ti'...; on April 10th, lie had written to
Blodget as follows: "If the furniture of
tii" Southern Hotel is to be insured 1
could take care of tho whole line for you,
and would place it in any companies that
you specially desire." "We think that
this testimony and evidence was suffici
ent to justify the jury in finding that
Blodget had authority to make the con
tract with plaintiff, and that he did make
it on behalf of defendant. There is no
pretense that a written policy embracing
the oral contract would not have been
made, of the. dale of .fuh/ 6th, if the tin:
had not taken place before it could have
iKjen done. CaUingham, when on the
witness stand, did not pretend that there
was any other reason for rejecting the
policy. There is nothing in the point
thai the plaintiff's brother and manager
of the hotel, W. H. Jtoron, had no
authority to act for pl;ur.t>ii'.
Judgment and order denying the. mo
tion for a nej>v trial affirmed.
MoFA KLASD, J.
We concur:
Shaki'stkin' J., '
Beattt, C. f.
[Filed February 14.1591.]
Appeal from Superior Court of San
Diego County—John B. Aiken, Judge.
For appcliauts, Hiaisuker ct Biitt and
J. E. Deakin,
For respondents. Luce, McDonald &
Terrance, Win. F. jierrin, of counsel.
IN BANK.
Sax Diego L. A T Co., ]
vs X';i l)Oud*nMNo. : 13,674.
Xeat.e, kt ai.., Appellants, i
This is a proceeding to <M>udemn land
for reservoir purpoßes. On the: former
appeal (78 Cal. (J3), the judgment was a^
armed as to all the issues except the issue
as to the value of the land. The cause
was remanded, for a new trial of that
issue, a trial was hud, and a judgment on
a venli.-t for 5122,t!575Q and costs of suit
was entered in favor of defendants ; but
the plaintiifs moved fora new trial, v, hich
motion was granted, and tho defendants
have appealed.
It would be sufficient for us to say that
as the order appealed from i.s one grant
ing » new trial, &ud as the evidenoe as to
the value of the land eoudemned is con
flicting, the decision ojt^he court below,
bathe absence of a Bhowiug of au abuse
of discretion, will not be reversed. 'J'iiis
rule has )>con bo many times-announced
i, would i>,? ;■- work of supererogation to
-.-lie 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 a aew trial was
called for hearing, the i\< Eendanta ob
jected to the s;;uie being heard on tlie
ground thai thecottrt had no jurisdiction
to hear or determine agqfiestion of fiwst as
to v.iluo. Tlie saiiio O'l.jtctiim, altiteugh
somewhat ditfereht in tonn. was presented
on the fosmer appeal and overruled. (7S
Cal., 65), The burden oj proof as to value
was on the defendant** (C. S. K. R. Co.
vs. S. F. R. 11. Co., (i 7 jCai. 63; Monterey
CJounty vs. CuahinK, Bft GaL 507). it was
their duty to allege and prove tho value.
I. tii 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.
The nature of deieini;tni"s land and its
situation with respect ,v> the reservoir of
plaintiff, i* shown inthe opinion filed on
the former appeal. (7S Cal. 06.) It was
there held thai the court erred in allow
ing defendants to introduce evidence of
value based on the fact that plaintiff's
dam was already in course of construc
tion, 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. • * *! * Where there
is no actual current rate of price, and
where in consequence the court must ar
rive at tlie value from a consideration of
the uses to which the; proporty may be
put, it seems monstrotiM to say that (he
benefit arising from the proposed im
provement is to in-taken into considera
tion as an element of the value of the
land." The court held tiiat tho present
vain" of the property for prospective pur
poses might be given, and that it was*
proper, therefore, to show the value of tho
property for reservoir purposes, although
it had never boon used for such purposes.
The court below, however, in its rulings
Bud instructions at the last trial, seems to
have entirely misconceived the scope and
effect of our former decision: Instruc
tions were given, bawd upon facts so re
mote from the real issuein the case, as to
mislead the jury on the question of dam
ages.
As stated before, it was decided on the
former appeal, and is the 1 law of the case,
that the value of the land for any special
purpose may betaken into account as one
of the elements tending to show its
market value. The fact that the land is
suitable for such a porpttte, and a chance
exists that it may some time bring tin en
hanced value therefor, has a tendency to
increr.se 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 Ailoway
vs. City of Nashville, (88 Term. 510), evi
dently misapprehended our decision in
this case on the former appeal.
We did not hold that the value of tho
land for reservoir purposes was a measure
of damages, independent of any other
consideration or element of value. On
the contrary, the opinion distinctly states
that the market value is to be the meas
ure of damages, and that evidence of
value for a special purpose is only to !„■
considered as an element of the question.
Neither the value in use to the plaintiff
nor to the owner is in govern. Indeed, to
guard against misapprehension, the court
was careful to say: "The word inihi, is
ased in different senses. • • * For
the purposes of the law of eminent do
main, however, the term has reference to
the value in exchange ot market value.
There 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
it will generally be found, on careful ex
aminatfon, tiiat such cases either relate to
the damage accruing to the owner from
the t iking, and not to the value of the
property itself, or overlook the distinc
tion between the two things. The con
sensus of the best considered cases is. that
for the purposes in hand the value to be
taken is the market value. • * • The
problem, then, is to ascertain what is tho
market value. * • • From the neces
sity of the case, the value must l>e arrived
at from the opinions of well-informed
persons, based upon tlie purposes for
which the property is suitable. • * •
Wluit is done is merely to take into con
siueration the purposes for which the
property is suable, m a means of ascer
taining what reasonable purcii. W. -
would in all probability bo will
ing to give for it, which, in a
general sense, may be said to be
the market value." In the Tennessee
case the court, not having the record in
this case before it, fell into the error of
saying that, "in tha: case it -wa3 held that
it was competent to prove the value of the
land for a reservoir site, and to make that
value the measure of damages, independ
ent of any other consideration or element
of value." The market vwlue is the ulti
mate fact to bo determined by tlie jury.
If the land iias a vaiue for tiny particular
purpose, its market valuo may j
be thereby enhanced. If its value!
for one purpose is to bo ex- I
eluded, why not for another? A va
cant lot in a city cannot be condemned
and taken at its v«lue for agricultural
porpaeeg. If land which has been used \
only for pasturage contains valuable \
mineral deposits, it cannot be taken for
public use without reference to what j
I reason: Mo purchasers would, hi the
I opinion, ofexperts, hi willing to givo for
: ii, takii \<t into coosir!'ration the eharac
nrot btuh deposit ~. Tho fact that the
i plaintilr wants the i:i:i ;i>r a particular
! pr.rpost ■ should not defeat the defendant
i in his oj Torts to show ite market value by
■ showim: as an element its value for th-.it
jnirticnl ir purpo.-i-; and the fact that tho
j plaintiif i.s the only person who has thus
lar ofler«. »1 to purchase isiiiuimteriiil. The
true dist tncnon is that the demand of
the plain till'alone is not to be considered
exclusive. 1 of other oonsidfiarations. It
] goes to n take up the aggregate of de
! mands, o t probable demands, which is
one of the elements of the inquiry. There
lis nothing ■in what -^m haVe said Incon
sistent wil ji what was decided In Gilmer
i vs. Liir.o Point, 10 Cul. 47, <.r CP.K. K.
• Co. vs. Pea crson, •'!■'"> Id. 217. In the former
[case the de feuUani offered to show what
! the land w: i.-; wonh to the Government
as a site foi" iortitieation. As the Gov
ernment w j; the only possibie purchaser
for such a purpose, it was apparent that
the attempt to show what it was worth
for a fortitk iition was an attempt to provo
what was tfe i peculiar value to*the Gov
ernment. Ti i C P. R. 1%. Co. vs. Pearson,
the defendant attempted to show what
the hind woi ilxl he worth to the owner,
provided the State should thereafter grant
him a wha; *t franchise; and the court
simply held 1 liat such a fact was too re
uuito and spe dilative.
An attempt is made to distinguish a
case where th( ! owner of the land sought
I to be condemn <*l occupies a commanding
j position from one where the land is re
mote from the. dam Bite. This contention
was disposed of adversely to the appel
lants in the 'it risioii on the former ap
peal. Land w h:eh is remote from the
dam she may h p.ve a less value than [and
at the dam site,: iut the rule governiag tho
admissrbility < >f evidence must, neces-
Barily be the same in each case. The
question in each case is: What is ita mar
ket value? and i. i determined by the same
rules. It will 0 ot do to say that land
sought to be coi idemned tor a reservoir
purpose has no > alue for such purpose be
cause it is too ran lote from the dam site,
Tlie very fact thai '• this laiul is sought to
be condemned fo r scch a purpose is an
admission of its a. Inptability therefor.
Bui at tho last i trial the evidence was
oot ■•unfinc'd to the question of the adapt
ability and value of the property as a
resorvoir site, cor fidored a-, an element
in i!k.' detsrmina lion of ks actual or
market va':no. AY ituesses were allowed
to give estimates lof- value based upon
speculative iniprc. vements, increase of
I population, extetis* <1" "' water systems,
and profits which would result from the
distribution and Kile of the water, thus
permitting the defei idants to show practi
cally v.i;ut plainti) Z. or another in its
situation, could aft'on d to pay for the land,
rather than go with' nit it. It was admit
-1 ■ I at the trial that ". it was not practicable
to have constructed :i reservfiirnpon the
350*45 acres ot land iit controversy in this
action except In connection with the ad
ioining land of the p] r.hitiff below it, and
lying between the dt fendant's land and
the dam site." Thci plaintiff had con
structed a dam by "V.'hieh water was im
pounded, cuvfiriii:: al] the land below de
! fondant's land, and. i v tact, al the time of
| the trial, ii portion of t ho hinds in contro
y. One of the ,Vitn sses (Sproul)
testified on behalf of defendants tiiat it
would cost ?9(X)^XXJ to construct a dam,
system of mains and distributing pipes
in order to utilize th;> i ßeservoir to.ife ut
most capacity over the i erritory tributary
to it, and that, estim. (.ting the market
j value of water to be !?!(> ) per acre for irri-
I cation, and ten cents • cr thousand gal
; lons for domestic pur;.. - •-, ;!.;' value of
; the land in controversy mis JB4l per acre
ion January. i:j, IN--7. Me stated that in
arriving at that eondukuon he estimated
tho cost of construction < a a suitable dam
and mains through the lands to be irri
gated ; assumed ihat Nat tonal City had a
population of 2,000, and t hat its increase
in the next ten year* we mid amount to
6,500; that the quantity ttf water would
irrigate 29,000 acres of land : that it would
lake ten years to complr te the system
and dispose of the enii r<> volume of
', water at tho rate of 2.IKX) acres per
| year; allowed $15,000 for running ex
j penses, taxes, etc, antd a sinking
fund of (11,000 to renew the system
at the end of twenty y* ars; credited
the reservoir for t& c sale of
! wafer rights and wat. ;r rates re
! ceived from National City ; charged the
I reservoir interest at th D rate of
! ten per cent., and carri< id the same
. system of debits ami credits
■ through a term of ten years, show
ing a Balance at the end of th c tenth year
of f1,623,084 after all the indei itedness had
been paid. This balance he considered as
the amount that would be di; c ti> the land
at the end of ton years. "' The present
worth of that amount, discounted at ton
per cent., or if that amount lu> *\ been paid
at the beginning <>r that ten y< jars instead
of at the end, it should have cm ten $/S2A£25,
which, divided between 742 aeires of land,
| amounts to ssil an acre.
Tho testimony was objected, to, the ob
[jection was overruled and pjaintiffex
i copied. After it was admitted the plaint
i iff moved tho court to strike it out on
j Hie ground that it was bsised upon
cgnsiderations and conting ;ncies so
remote, uncertain and spec, dative as
to be wholly inadmissible , and in
competent us a basis for fixing the
market value of the land in qi it-stion on
the 13th day of June, 1887, or at any other
lime. The court denied the motion and
plaintiff excepted.
Another witness. Ryan, ostii nated the
land to ho worth $600 uer acre, basing iiis
conclusion upon similar calcul: '.ions and
contingencies, and upon the a.ssuinption
that ii was to be used in connect! on with
plain tin's reservoir.
It is contended by appellants that the
testimony of these witnesses, amd other
testimony of a similar nature, was ad
missible because there were no similar
properties in the market, by acorn parison
with wliich the market value of t)i c prop
erty in controversy could bo arrived at;
that the method pursued was sim piy fix
ing the actual value by ealeulaii on— by
considfring the necessary expead'iture in
putting it in condition for cert:: in pur
poses, and the probable income an< i profit
which would result from ita use. Many
cases tire cited in support of tlr.s eon
tention^ainonp them the Boom Co npsiny
vs. Patterson, !)8 U. S. 409; li. R. an i! P. S.
R. R. vs. McGhee, 41 Ark. 2IC>; an," L. R.
.T. B. R. vs. Woodruti. r, s. \Y. Xi p. 782.
But none of the cases cited go to the
extent claimed for them. Jit Boon Com
pany vs. Patterson thecotxrt said Uiat as
a general ruin (>oni}](l!nsatiori to tho'< nvner
is to l>e estimated by reference to lii 9 uses
for which the lands are suiiabie. h. wing
regard to the existing business or roots
of the community, or such as in:iy be
reasonrfbly expected in tha imm- •:;;•.■■
future, and tliat the adaptability c; f the
land for a certain purpose is a pro;)', r ele
ment for consideration in estimatin a the
value of the lands when appropriate U for
public use. There is" nothing in the> re
port of that case to show that ttu'de
fendant was permitted to prove the cost
of constructing the boom and the pr t>fits
which woidd result to the company 1 rom
the use thereof. In L. R. J. R. R. Co.. v.s.
AVoodrulf, -supra, the Court said: "JT tlie
market value is the price for which the
pn iperty could be sold on tho market, we
will next be led to inquire. How is the
market value to be proven? This is
usually done by calling witnesses vrlio
are familiar with the property, and a -;k
--hia their opinion as to such value. • t •
i When t'ue witness lias made his estim ate
j as to the market value of tlie property. it
is competent to support his estimate" by
haviiig him describe the property, givi rig
its location, advantages and surroonoln
though ordinarily this would bo uneal; ed
for, unless liis estimate was attacked on
his cross-exaniination, in winch case t he
party introducing him would have ample
I opportunity to rebut any facts whi.<-h
liii^iit appear to lie derogatory to his e*-ti
niate. - • *■■ We dcciii it proper, ho w
cver, to say that the presiding Jvc ge
should not suifor collatenU issues to
spring up and multiply , or the jury be
taxed with facts and figures which con Id
throw no appreciable litfhf upon the
lon in ti;tnd. nalnely, tie. :'.-,c(.-i-tai ij
men! of the market value of the prco
erty."
In the <-aso at bar the opinion of sort te
of the witnesses was based on specul.-.ti'-. -i;
and QQjrfeetunl calculationß of expend '-.
ture and prolit for a period of five- year <,
i and others on a basis of ten years' use <>f
the property in controversy, in con;;.■. -
' tion witn the property owned by plaintitn
The facts and figures relied on in support;
of these opinioiw not only thiew no Ught
I on the question, but must have operatod.
/r^\. There must be
&%^^3 some reason for it
\^^ |£ * *5V We never have compelled anyone to
,A use Pearline. We'd like to, but it
y/^^sssb "q\ isn't feasible. Besides, it isn't neccs
/ >^C~sft») Sai^' onsusePeari"le >andhave
/"^ \\wl tested and proved it. It'stoooklto
/ V \ \.\ be unknown, if it were a fraud, but
V) \ \\\ where is the thing as popular and yet
ilv \ \ \so young? If you know Pearline,you
vV \ I know the reason. In all washing and
VS. \ • i /' cleaning, there's nothing that .saves
as much labor and does as much
work. It hurts nothing, saves wear on everything, costs
no more than common soap and is more economical.
Reasons enough for most women ; think, are they not
good enough for you ?
|3 .~ ._ I'ciMlers and come unscrupulous grocers will tell you
l^k|—^\^kZO T°/^ "this is as good as" or "'the same as Pcariine."
JL^\^/ W Ctl V^ IT'S FALSE—Pearline is never peddled, and if your
grocer sends you something in place of Pextxline, do the honest thing— ssnait lack.
nS JAMAS PYLE, ?. Te\v Yor!t.
i to confuse and mislead the minus of the
, jury. Oi" course, as was said in Boom
Company vs. Patterson, it is perhaps un
i possible to formulate :i rule to fjovom
I the appraisement of property in all cases;
'out ii is easy and pafeto pursue iho coarse
pointed om !>y the court in L. K. J. R. It.
vs. Woodruff Let the witnesses in di
rect examination state their opinion as to
the market value of the property, "hav
ing regard to the existing business wains
oi' the community, or such as may !><_■
reasonably expected in the* immediate
future," and support Weir estimates by a
description of the property, giving it-; i<:
--i catio::. sitrro'nndings arftl auvantages for
1 any particular use, if it have any. < Sppos
!my counsel should then bo 'f&Howea to
I mak<! every Inquiry touching the prop
j erty which one about to liuy it would
reel it to his interest tt> make,'' and for
j the information of the jury, and to test
; tin- value of the opinion: given, be per
! ntittcd the widest latitude 'in cro-s-exani
•i iaation.
The following authorities establish the
proposition that the compensation 4p be
awirde3theovmerpf'the htn.i oondemned
cannot bo based upon the value of the
property to tho person or company in
charge of the public use, nor by Us"ne
cessities, and tliat it is not proper to take
. into consideration the profits which may
i result from the use of the land, especially
i j where the profits depend, upon the ex-
I penditore oflarge sums of money in car
! rying out tho contemplated enterprise:
T. W. Canal Co. vs. Archer, ;> prill dfcJ..
; Md. -si; Gardner vs. Inbanitnnts Brook-
I line, 127 Mass. 858; Brirko vs. SVigglos
worth. 117 Jd. 30-2; Reading U. R. Co." vs.
■ Balthasar. 17 Atlißep. .".; :: Itorlan vs.
E. 15. W. It. R. Co., V, i>:;. Si. &&, S. t vr C.
R. K. Co. vs. Galgiftm, 40 '.'a!, I >.h
Appellants contend that the court
did not err in refusing to strike
out tho testimony objected to, bo
cansß tho witnesses were competent
to express an opinion as to value,
and the reasons for stieb oprhtap can only
aiiec.r the weight to be given to tiicirt-.'K
timoii.v: but we think that whereo'wit
• ness bases his opinion entirely upon in
. competent and inadmissible matters, or
shows that Buch matters are the chief
elements iii the calculations which lead
him to such conclusions, it should-be re
jected altogether. (K. and 1\ R. R. Co.
ys. Balthasar, Vi Atl. Ken. lmu.)
It clearly .tppears that the witnesses
, referred to based their estimate of
the value of the property imon
an anticipated investment of a large
amount of money in an extensive system
rI of water works, and founded their opiu-
I ion largely upon hypothetical expendi
tures and receipts of money, andan in
creased demand IV.r water. The court,
too, adopted the same erroneous rules,
and under its instructions .the jury must
■ have found such price as in the opinion of
the witnesses thu land might bring, or
probably would bring at some future pe
pjriod, if plaintiff or another initssitua-
I tion should extend the works as contem
plated by the witnesses.
It is claimed by the appellants that the
plaintiff ought not to be heard to complain
lof the ruling of the court in admitting
; the U siimony referred to, because its own
I witnesses had given testimony of the
same character; but, as was said when
the case was here before, "the introdnc
; tion of irrelevant evidence upon one side
! without objection does not' justify ihe
introduction of irrelevant evidence upon
the other side." (See, also, Waikut) vs.
Pratt, 5 Har. ft .T. 56.) But. if the ruling
ol the court could be sustained for the
reasons urged, the court in some of its in
structions to tilt; jury, as stated before,
adopted the same rules as those followed
by the witnesses in their testimony.
The court instructed the jury, at' the re
quest of defendant, that In considering
the weighj to bo 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
; rigame from the, reservoir, the need of
such lands for irrigation in order to make
them habitable and productive, together
with the needs of tho inhabitants of cities
and towns within reach of this system of
water works, and appearing on" the 13th
of June, IS>7, to be dependent upon it for
water; the proportion which the defend
ant? land bears to (!»■ remainder of the
plaintiff's reservoir; the quantity of water
the storage of which is secured By tho use
of the defendants' land in connection with
the adjoining hind of plaintiff or
other persons, and the value of such icalcr
OS a salable commodity in ihe neighborhood
tributary to this reservoir on tie ISth day
of June, 1887; also, that in considering
tho value of the land fcr reservoir pur
poses, as a guide to ascertaining its
market value, the question was not what
it was worth to plaintiff as owner of the
remainder of the reservoir and dam site,
in .June, IS!7, doing business as they pro
posed to do, but it is, what was it worth
I to any reasonable poison able and willing
| to buy, and intending to acquire by pttr
• auue or condemnation ike dam site ana the
i remainder of ike reservoir, and to use the
whole for supplying: water fw public use
■ Over the territory tributary to this tjfitem;
that the jury had a right to consider, if it
be a fact, tho proximity of the land to an
eligible dam site, and its availability for
reservoir purposes, in connection with such
dam site and other adjacent lauds.
The court had fairly and fully in
structed the jury at the request of plaint
lit on the subject of value, but these in
structions, given at the request of the de
fendants, were erroneous, because they,
in effect, indorsed the methods of calcu
lation employed by the defendants' wit
nesses, and informed the jury—at least
the jury undoubtedly so understood it—
thai they might find the value to be what
the land was worth to tho plaintiff, or an
other in its situation, and that this might
be determined by a calculation of the
probable profits from sides 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
and speculative as would bo 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
be affected was as foreign to a legit:
estimate of the market value of the land
as the .-,;/.-; and gr.nvth of a city on the
lino of the railroad would bo in fixing the
j aloe of land taken for railroad purposes.
Tin; necessities of the public are never
taken into consideration in nxin<»- the
value. They are an element which "must
be proved before the land can
Ikj taken, but are never an
clement of the queston as to compensa
tion. The proportion which the defend
ants' land bore to the remainder of the
plaintiff's reservoir, and the quantity of
water which would be stored by use of
the defendants'l.ind in connection with
the land of plaintiff, and the value of the
water as a salable commodity, were
clearly improper elements to be con
sidered. iT. \V. Canal Co. vs. Archer,
and other cases, supra.) Tho question
was not what the property was worth to a
I person intending to acquire ft and tho
I darn site and the remainder of iJieroser-
I voir by purchase or condemnation for tho
purpose of supplying water over the
territory tributary to the system, but
j what wus the tnarkot value oV the prop
] erty itself. In other words, what tliede-
I fendants could have obtained for choir
land if it had been offered for sale in the
market, a reasonable time being given
within which to make the sale. Tho
plaintiff most compote in the market
with bond fide purchasers generally, but
its necessities caniiot be taken advantage
of. So Jar as tho value of tho land in
controversy may have be-on increased to
: purchasers generally by the construction
I and use of the plamliff'H dam and reser
voir, or as a part of tho entire reservoir
site, such Cact should be considered, but
tho value of tho land when used in con
nection with the plaintiff's land cannot
l>> taken as a criterion, for this would bo
taking the value to the plaintiff as tho
mi asure of compensation. The jury had
a right to consider the fact, in determin
ing the market value, that the land In
controversy was in proximity to a dam
site, and to consider its adaptability for
reservoir purposes, and to determino
whether or notjits market value had been
enhanced by improvements put upon ad
j joining property, but for the reasons
stated its adaptability, for reservoir pur
poses, should not have been considered
'•in 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,
i; seems unnecessary to do so. It is
sufficient ro s:i3' that any facts showing
the nature or the land in contro
versy, and its adaptability for reser
voir purposes, may be shown. Tho
area of tho water shed, and amount
(.;' water, were matters proper to
b< considered, for a reservoir would be
useless without water. That there was
land Irrigable from the reservoir, and
cities anq towns which were being sup
plied with water from wells were mat
ters, not only tending to show that it w.;s
; a practical reservoir site, but bearing di
rectly upon its value. The condition of
the property, the uses to which it may bo
put, having regard to the • existing ad
vantagi s for making a practical use of tho
property, and such advantages as may !:o
: reasonably expected in the immediate
i future, are all matters for consideration
j in estimating the value of the lands
i (Boom Company vs. Patterson, suprcfi;
but to attempt to ascertain the value by
(estimating the cost of works necessary
for its use fora particular purpose, tho
j cost of operation, prospective sales and
> estimated profits, increased demands
through growth of population, etc, re
quires "a degree of refinement in the
■ 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 t<> ase
as a measure of value. All other meas
ures are necessarily arbitrary and fenci-
I fill." (Seurle. vs. L. &. B. R. It. Co., 33
Pa. St., p. <>!.)
The court did not err In overruling
! plaintiffs objection to the question asked
i Mr. Schuylerduring bis cross-examina
tion. It was proper to show that be had
a) Borne prior time entertained a 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. Wo
think their opinions ought not to havo
i been received.
! We think that iho company should pay
j the costs of this proceeding on account of
tho manner in which it opened anil
proved iUs case at the last trial. Section
1253 of the Code of Civil Procedure
provides that " costs may be al
lowed or not. and, if allowed, may
be apportioned between tho parties ou
the same or adverse sides, in tho dis
cretion of tho court." Mr. Lewis, in hia
work on Eminent Domain, paragraph
559, in speaking of tho question of costs,
says: "It seems to us that courts should
! be? guided by the following principles and
I considerations in the matter: By the Con
j stitution tho owner is entitled to just
compensation for his property taken for
public use; he is entitled to "receive this
compensation before the properly is
taken or his possession disturbed; if tho
parties cannot agree upon the amount, it
must be ascertained in the manner pro
vided by lav,-, as the property cannot bo
taken until the compensation is paid, and
as it cannot be paid until it is ascertained,
I tho duty of ascertaining the amount i.s
necessarily cast upon tho party seeking
to condemn the property, and ho .should
pay all the expenses which attach to tho
process. Any law which casts this bur
sltMi upon the owner should, in our opin ■
ion, bo held to bo unconstitutional and
void. * * * If the statue gives theeen
demning party a right of appeal it cannot
cast the costs upon tho owner, even if tho
assessment is reduced." (See also In ro
Nyws and B. EL K. Co., 9-1 K. Y. 287.)
Wliatewr may bo the constitutional
rights of the parties, we think in this ease,
under Section 12"».:>,that it will be :i proper
exercise of discretion to require the com
pany to pay costs.
The order is affirmed, and tho court bo-
Low is directed to tax the costs of the last
trial, and of this appoal, against (he
plaintiff. PATEKSOK, J.
We concur:
Mi'Kahlaxd, J.,
Harrison, j.,
Gabouttk, J.,
SKABPSZBOr. J.
CONCURRI.VO GPIXIOX.
I concur in the judgment on tho ground
that there was such a conflict of evidence
on the question of value an to warrant the
Order directing a new trial, bat I. do not
think the Superior Court erred in ruling
upon the motions to strike out testimony!
or in Its instructions to tho jury.
U'eattv, C. J.
Clianjjes of Climate
Kiil more people than is generally
known. Particularly is this the c;W(j in in-
stances where the constitution is delicate,
and among our immigrant population
seeking new homes in those portions of
tii<- West, and where malarial and
typhoid fevers prevail at certain seasons
of tiie year. Theboat preparatives fora
change of climate, or of diet mid v. :Uec
which that change necessitates, is Hos
teller's Stomach Bitters, which net oulv
fortifies the system against malaria, a
variable temperature, damp and th» de
bilitating effects of tropical heat, but is
aiso the leading remedy for constipation,
dyspepsia, liver complaint, bodily
troubles specially apt to attack eruigranta
and visitors to regions near* the equator
mariners and tourists. Whether used as
a Bafegoard by sea voyagcre, travelers by
):i;i(i. miners or agrioulturaiists iv nowly
populated districts, thi.s tine specific has
elicited the most iivorable testimony.
7