275 P. 228 | Cal. Ct. App. | 1929
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *710 The transcript in the above-entitled cause includes the record on appeal of nineteen actions consolidated for the purposes of trial. Five of these actions have been dismissed, leaving for our present consideration the appeals in fourteen of said actions. For the purposes of convenience the defendants and respondents will hereafter be referred to as defendants and respondents, without naming the particular defendant or respondent, only in cases where necessity requires.
The actions are all eminent domain proceedings, instituted by the City of Stockton to acquire certain lands and premises to be used as a reservoir site.
In the year 1924, the voters of the City of Stockton, pursuant to an election had in accordance with the resolutions adopted by the City of Stockton, authorized a bond issue in the sum of $1,500,000, for the purpose of constructing a flood control dam on the Calaveras River, in the county of Calaveras. The defendants in the actions referred to are the owners of several tracts of land lying easterly of the site of the dam proposed to be erected for restraining and controlling the flood waters of said stream, which would, in part, be submerged in the event of the construction of the *711 flood control dam. The action involves the ascertainment of the value of the land proposed to be submerged, and the value of adjacent lands thereto which would be injured or lessened in value by reason of the severance therefrom of the lands submerged.
The cause was tried before the court sitting without a jury, findings made and the judgment entered fixing the value of the submerged lands, the lessened value caused to contiguous lands by severance, and the value of the improvements which would be injured or destroyed by the holding back of waters of the Calaveras River. The record shows that the City of Stockton proposes to erect a restraining dam of the height of about 144 feet on the Calaveras River, at the site mentioned in the proceedings; that by means of spillways and flood gates it proposes to control the flood waters of said stream during the rainy season, in such manner as to avoid the danger of periodical flooding to which the city was subjected prior to the year 1911, when a diverting canal was built to the east and north of the City of Stockton, since which time the flood waters of said stream have been thrown back upon the agricultural lands adjoining the city. By means of the proposed restraining dam the flood waters gathered by the Calaveras River would be allowed to escape from the reservoir created by the building of the dam in question, in such quantities only as would not endanger the flooding of the City of Stockton or any of the adjoining territory. Between the City of Stockton and the site of the proposed dam there are several thousand acres of land called the "plain land," before the foothills are reached, which gradually merge into the Sierra Nevada mountains. The ascent from the plain land just referred to, to the site of the proposed dam, is more or less gradual so that the elevation of the foot of the proposed dam is estimated to be at about 530 feet above the level lands lying to the west of the foothills just referred to. The dam proposed to be erected by the appellant, when completed, will have a maximum elevation of between 670 and 680 feet above sea-level, and the 674-foot contour line mentioned in the testimony is the maximum height to which the impounded waters will reach after the construction of the proposed dam. The testimony introduced on the part of the defendants, in most part had reference to, and was directed to a possible *712 dam 200 feet in height that might, owing to the adaptability therefor of the site on which the proposed dam was to be erected, place the maximum flood countour line at an elevation of 730 feet. Expert witnesses were placed on the stand by the defendants and proceeded to testify as to the adaptability and possibility of erecting a 200-foot dam. The testimony tends to show that the watershed lying easterly of the site of the proposed dam covers some 394 square miles; that such a dam would have a reservoir capacity of $350,000 acre-feet and would afford water for irrigation purposes of from 34,000 to 50,000 acres of land lying in the foothills and plain lands of Calaveras and San Joaquin Counties to the westward, to which water for irrigation and other purposes might be conducted by gravity; that such a reservoir would afford water for domestic purposes for the citizen-towns of San Joaquin and adjoining counties; that the waters from the reservoir might also be used for power purposes at a point near Jenny Lind, in Calaveras County, where a drop of approximately 200 feet might be had.
The record on appeal is exceedingly voluminous, comprising fourteen volumes of testimony of approximately 500 pages each. The examination of witnesses, both direct and cross, was almost interminable, and the testimony introduced can only be set out in this opinion to a limited degree and by way of illustration.
Three grounds of error are assigned by the appellant for reversal herein, to wit: 1st. That the trial court misapplied the rule concerning severance damages, in action number 3176, as that number is given the cause in the trial court, concerning lands operated by Louis Vogelgesang and Gustave D. Vogelgesang, doing business as partners. 2d. That the trial court erroneously awarded damages in action number 3161, as that number appears in the trial court, for alleged destruction of an easement over a certain road or highway claimed by Ellingwood and Vogelgesang. 3d. That the findings of the trial court as to the compensation to be awarded the various defendants for the land taken, and also as severance damages, are not supported by legal evidence, and that the judgment based upon such findings is erroneous.
We will consider the assignments in the inverse order in which they are made, by reason of the fact that the major contention upon this appeal involves the testimony relative *713 to the reservoir adaptability of the lands sought to be taken, the method of ascertaining the sums that should be paid therefor by the City of Stockton, and to what extent the damages may be claimed, whether only to the 674-foot contour line or to the 730-foot contour line, as contended for by the defendants. As there are somewhere between forty and sixty different parcels or tracts of land involved, the question is also presented for consideration whether testimony as to reservoir possibilities or adaptability of the different tracts should be admitted as an element of ascertaining value, in view of the fact that none of the parcels of land, taken singly, would have adaptability for reservoir purposes.
The testimony introduced on the part of the respondents was practically all directed to the availability and adaptability of the lands for reservoir purposes, and that the special value for such purposes gave to the land sought to be condemned a market value largely in excess of that which should be given, when other purposes for which the land was adapted were considered. On the part of the appellant practically all of the witnesses based their estimate of the market value of the lands sought to be condemned upon their agricultural possibilities, to wit, their value for farming, grazing and stock-raising. [1] While a great deal of language has been used in different decisions having to do with the fixing of values, it is evident that the law contemplates one purpose in eminent domain proceedings, and that is that the land owner shall be compensated for the full market value of his property taken, irrespective of what the elements may be which enter into the making up of that value. Market value, also, is a relative term. While the distinction is not clearly made in many of the cases, it requires only the application of a little common understanding for the court to appreciate that one seeking land for grazing purposes or to use for ranging sheep would not consider the purchase of lands adaptable, for example, to the cultivation of asparagus. On the other hand, a purchaser looking for asparagus land would find no marketable value whatever in lands suitable only for grazing. No one would consider for a moment the correctness of estimating lands suitable for asparagus culture, upon the basis of use for stock-raising, or a score of other like uses to which such lands might possibly be devoted. Likewise, in determining the market value of *714
asparagus lands, common understanding would lead one to inquire as to the price which a willing buyer would pay who wanted land suitable for asparagus culture. The market value of land suitable for asparagus culture would also be determined, to some extent, upon the number of people in the market for that character of soil. In the case at bar the testimony of the respondents' witnesses fixed the major portion of the lands to be submerged at $100 per acre. On the other hand, the values fixed by the witnesses for the appellant reached an average of about $25 per acre. An examination of the testimony which we have read, page after page, as given by the different witnesses, exhibits clearly that the different sets of witnesses had in mind different elements in fixing values. Thus, the witnesses for the respondents accentuated the values given to the lands by reason of their natural location, for use as a reservoir for storing waters gathered from the watershed to which we have referred. Conversely, many of the witnesses for the appellant testified as to values based upon the availability of the lands for grazing and general agricultural purposes. A few only of the witnesses for the appellant possessed the engineering ability or capacity, gained either by study, observation, or experience, to take into consideration and testify to the availability of the lands for reservoir purposes, or the value of such lands adaptable for such purposes. Again, when it is said that the market value of lands is the price which a willing buyer will pay and a willing seller accept, if we leave out of consideration the purpose for which the land is peculiarly available, and the length of time ordinarily required to find a purchaser who wants lands for which the lands to be condemned are peculiarly adapted, or the length of time which it would require the land owner to find such a purchaser, we overlook an essential element of value. Thus, there may be a large number of people who probably are ready to buy grazing lands on which they may herd sheep or cattle, but the number of persons having the capital, or the number of corporations or municipalities seeking lands for reservoir purposes is, from the nature of the case, more or less limited. Thus, it is readily apparent from this statement that if the value of lands which are peculiarly adapted to a purpose that gives a much higher value, it would be taking the lands without returning just *715
compensation if an award is made based upon testimony of witnesses considering the minor elements only. In this particular we speak of the major element as that which gives the highest value; minor elements, those which enter into establishing the lesser values. [2] If the lands sought to be condemned are peculiarly valuable for reservoir purposes, we think the following is a correct statement of the law as applied to the pending actions: What the land is worth in the market for reservoir purposes, not what it is worth to the condemnor for reservoir purposes, is the major factor to be considered by the court in making its award of damages. Again, the fact that the condemnor does not propose to make the highest use of the lands is not a determining factor. If the highest use of the land to which it is adapted for reservoir purposes would be subserved by a 200-foot dam, we think such testimony admissible. As said by this court in the case of City of Stockton v. Vote,
Appellant makes the preliminary objection that the witnesses for the respondents were not qualified to testify as experts or were not qualified to testify as to the market value of the lands. Their competency as hydraulic engineers, their experience in building reservoirs, their acquaintance with other reservoir sites, their experience in obtaining rights of way, easements and lands to be used for reservoir purposes, do not appear to be seriously questioned. The argument challenges the competency of the various witnesses to testify as to the market value of the lands involved. The rule of law applicable to such witnesses is succinctly stated in the case of Reed v. Drais,
Upon cross-examination the witness Galloway testified as follows: "Q. The lands we seek are in sections 5 and 8; you gave the value of the lands we seek; what was the basis of your computation in this particular case? A. For the lands that are completely submerged and below the 730 foot contour, $100.00 per acre; for the lands in the tract sought to be condemned above the 730 contour, $15.00 an acre; and the value destroyed on the whole tract outside of the portion condemned, $85.00 an acre. Q. Then your value in that particular case did include damage in your opinion to the lands that we do not seek in this case? A. Yes, that is true. Q. And your unit price for the lands below the 730 foot contour which I presume you designate as reservoir lands, is *719 $100.00 per acre? A. That is correct. Q. How did you arrive at a figure of $85.00 per acre damage to the lands which we do not seek and which are below the 730 foot contour? A. I arrived at it in this way: It is my general opinion that the submerged lands below the 730 foot contour are worth $100.00 an acre; in taking the whole site for a reservoir, certain lands that you do not take have a reservoir value destroyed; the total value is $100.00 per acre; if you do not take the land but destroy the reservoir value, the only value that is left to the owner is the value of about $15.00 an acre; therefore, the destroyed value is $85.00 an acre. Q. Did you give any of them a higher unit price than $100.00 an acre? A. I did." This witness then testified as to the value of certain gravel deposits which appears to have been disregarded by the court in its findings, and, therefore, will not be given space in this opinion. The witness was then further interrogated: "How did you arrive at the $100.00 per acre? A. Through a general consideration of a large number of factors; the price of lands in other regions; the price of lands in other reservoir sites of which I endeavored to keep track and what is paid for them; by general experience in dealing with matters of that sort in relation to the construction of reservoirs and the relation between the size of the reservoir, the cost of constructing the dam, the flow of the stream and the developments of various types such as irrigation and power that may be had from such a reservoir. I took into consideration all those elements and endeavored to arrive at a value of the land. . . . Q. As I understand your explanation, the land which lies above the 730 foot contour is valued at $15.00 per acre. A. That is correct. Q. And the land immediately below that contour line is valued at $100.00 per acre? A. That is correct. Q. The difference is due to its reservoir adaptability? A. That is true. Q. Mr. Galloway in considering the reservoir adaptability of any individual parcel of this proposed basin, I presume you assumed its junction with the other necessary parcels? A. One must have it so. Q. And isn't it a fact, Mr. Galloway, that your information concerning the reservoir adaptability of these lands is based upon your belief that from the engineering standpoint, a project at this place is feasible? A. Certainly, I think it entirely feasible." *720
The witness Ellis, on cross-examination, testified: "Q. When you stated you had two unit prices, what were those unit prices on which you based your values? A. I used for reservoir lands or lands to be submerged one hundred dollars an acre and for lands which were above the 730 foot contour line, twenty dollars an acre. Q. How did you arrive at the figure as to the market value of this land in 1924? A. That was my estimate as to what it was worth as a site for a dam. Q. As to what it was worth to whom? A. To anyone building a dam. Q. How did you arrive at that particular unit price? A. That is simply my judgment; I have no mathematical formula; that is a price that I would recommend a client to pay for a damsite of that character." This witness testified that the particular land on which the dam was to be located was of the value of $250 an acre. "Q. How long would it take to obtain a purchaser at your figure? A. I could not say; I conceive that land as being acquired and sold as a part of a reservoir. My reasoning was this: Anyone developing that reservoir would naturally want that damsite; that a reservoir project of that character and with its very salient features of economy for reservoir development would have a strong appeal in the modern trend up and down the mountains which flank the valley, with a reasonable time I think the damsite and reservoir lands and all those would be sold at a figure I put on them. Q. Now, your value of $100.00 an acre, how did you arrive at that figure? A. My value of $100.00 an acre was influenced by several factors. I first felt that this land had a very high reservoir value, higher even than comparable lands in many other instances, due to the fact that with the 200 foot dam there can be impounded 350,000 acre feet which is something rather rare; that means that your cost per acre foot of storage would be very much less, far away less than ordinarily encountered, without going into any figures as to the cost. The mere fact that a 200 foot dam would have impounded 350,000 acre feet indicated a high reservoir value. In other words, a person could afford to purchase that land and erect a dam and develop very cheap storage for three purposes, for irrigation, power and domestic supply. Again, I had some knowledge of reservoir lands that had been acquired. I had in mind prices that were paid for lands by the city of San *721 Francisco for lands lying adjacent — particularly adjacent to the Hetch-Hetchy reservoir, for which the price, as I recall it, was something in the neighborhood of $115.00 an acre." This witness then gave a rather extended statement of elements entering into the value of reservoir properties, and his experience therewith, and his opinion that if the properties were not clouded by this proceeding, purchasers therefor could be had at the values estimated by the witness. The witness Polk testified along similar lines upon cross-examination, and also to the further fact that he made no inquiry of sales of land for agricultural purposes, and then answered questions as follows: "Q. The buyer you have in mind must necessarily have been one who at the time would have been buying it for the purpose of using it in the development of this reservoir scheme that you have testified to? A. Yes, sir. Q. When you speak of your experience you refer to results, primarily, in other districts where water projects have actually been developed? A. Partly, yes. Q. Contemplating those matters, and looking forward to the time when the project would be developed, you arrived at the figure you gave for the market value of the land? A. Yes. Q. It is always as a reservoir and water storage proposition that you are dealing with, the value that you are giving here? A. Yes, sir. Q. And in arriving at your value, of course you necessarily assume that the lands would be united? A. Certainly." The witness Pache, after testifying as to his experience with the South San Joaquin and Oakdale Irrigation Districts, answered questions as follows: "Q. And you believe there is a comparable project here in this vicinity? A. All things considered, I do. Q. And that is one of the bases upon which you form your opinion as to the value of the lands in the Calaveras River Basin? A. Yes, sir. Q. In January and February, 1925, you were procuring options on property in this basin for the irrigation districts, were you not? A. Yes, sir. Q. And the land was being purchased, as I understand, exclusively for reservoir purposes? A. Exclusively for the districts. Q. Now, in these lands that you designate as reservoir lands and value them at $100.00 per acre, will you explain to the court by what process you arrive at that valuation of $100.00 per acre? A. By observation, my own experience in buying lands of similar character for reservoir *722 purposes. Q. And in fixing that value, do you take into consideration the possible yield which may be produced by the use of that land for reservoir purposes? A. No, sir. Q. And the only reason you fixed the price at $100.00 per acre is because of the comparison of this situation with your experience in buying reservoir lands for the two irrigation districts on the Stanislaus River? A. And my general observation of the beneficent results, creation of reservoirs, the water thereof to be used for various purposes. Q. Now, on that land which is available for reservoir purposes what, in your opinion, is added to the value of this reservoir available lands by reason of the fact that there are improvements located thereon? A. In my opinion, the value of the land if utilized for reservoir purposes, the market value of that land, as between a willing buyer and a willing seller, for reservoir purposes, is $100.00 per acre, and the improvements thereon shall be paid in addition to that $100.00."
The foregoing excerpts illustrate the general trend of the testimony elicited from the defendants' witnesses upon cross-examination, save and except as to the few witnesses on the part of the defendant who testified only as to lands not lying below the 730-foot contour line, and constitutes the basis of the appellant's motion to strike from the record the opinions of the witnesses as to market values testified to upon direct examination. In 10 Cal. Jur., page 1020, it is said: "Where a witness testifying as to value, bases his opinion entirely upon incompetent and inadmissible matters, or shows that such matters are chief elements in the calculations which lead to his conclusions, his testimony should be rejected. This applies with great force where the opinion is based upon pure speculation. Thus, in a proceeding to condemn land for reservoir site, estimates of value based upon speculative matters, increases of population, extension of water system, and the profits which would result from the distribution and sale of the water, are not admissible." The objectionable basis, if it exists, is made to appear in some of the answers given by the witnesses upon cross-examination. However, in these answers we do not find anything which indicates that the opinion of any one of the witnesses is founded upon mere speculation; they all speak from experience, as to the adaptability of the *723
premises for reservoir purposes. It is true they all speak of lands taken as a whole, and not as to individual parcels. This goes only to the weight of the testimony, if the testimony value of the different parcels for reservoir purposes is to be considered in union with other lands. There is nothing in any of the answers which takes into consideration increases of population or extension of water systems. No witness attempted in this case to figure out the profits of the enterprise, but several of the witnesses, upon cross-examination, stated that they thought an intending purchaser would be justified in paying $100 an acre for the land, for the purposes for which it was best adapted. One or two of the witnesses testified that there was a growing inquiry for reservoir sites, and that he thought the lands could be sold for the figures named, within a reasonable time. The words "reasonable time," we think, bear the proper interpretation of the time required to reasonably launch or dispose of projects to which the witness was referring, and not merely the days or weeks that might be required to sell the land for grazing purposes. The appellant, in this particular, quotes from the case of San Diego Land Co. v. Neale,
In City of Oakland v. Parker,
[6] A reasonable time within which to find a purchaser looking for a particular quality or kind of land adaptable to a particular purpose is not, and cannot be, held a proper definition or limitation of time when applied to purchasers seeking land for an entirely different purpose. As we have said, the reasonable time and open market, as applied to the sale and purchase of grazing lands, is entirely different from the reasonable time and price to be applied where one is *725
seeking lands suitable for raising asparagus, sugar beets, or other like products having great value. In other words, because a purchaser looking for land for only a minor or less valuable purpose may be more quickly found than one seeking lands having a more valuable adaptability we think cannot be taken as the reasonable time and proper limitation when applied to the latter purchaser. We think "reasonable time" must be construed in connection with all the conditions and circumstances affecting the market value and the extent of the demand for the property involved, possessing the adaptability shown to exist. In the principal case of San Diego Land Co. v. Neale,
[7] Before considering whether authorities bearing upon the character of testimony that may be introduced in eminent domain proceedings seeking land for reservoir purposes, we will review the cases cited by the appellant in support of its contention that such testimony is wholly inadmissible in this case by reason of the fact that the land is owned in different parcels by a number of persons, the contention being that where a union of the lands can only be accomplished by the intervention of eminent domain proceedings, the owners of the land are not entitled to share in any enhancement of their property by virtue of the expected exercise of that power. The principal cases where this subject has been considered are those involving the Ashokan and Medina Valley reservoirs. In applying the rule stated in the cases about to be referred to, it is necessary to keep in mind the distinction between instances where the very nature of the case precludes a possibility of a union of the lands without the exercise of eminent domain, that is, where there appear obstacles which would reasonably be insuperable without the exercise of such power, and instances where such apparently insuperable obstacles do not appear, and nothing is set forth in the record indicating that any attempt has been made to unite the lands, other than by eminent domain proceedings. In other words, if the fact of the practical impossibility of uniting the lands does not appear from the very circumstances surrounding the case, *727 the appellant cannot exclude the testimony as to the adaptability of the lands for reservoir purposes simply by instituting eminent domain proceedings. A careful consideration of the cases cited, we think, shows that the broad application of the rule as contended for by the appellant is unsupported. In Medina ValleyIrr. Co. v. Seekatz, 237 Fed. 805, the circuit court of appeals of the fifth circuit, in passing upon this question, holds as follows: "It is not suggested that the defendant's land, standing by itself, was eligible as a water storage reservoir site. The fact that it was so situated as to be available for a union with other lands to make up a reservoir site may have had effect in adding to the amount obtainable for it by the owner from someone desiring to buy it. It was open to the defendant to prove the market value of his land by whatever circumstances or influences that value may have been affected. But in the circumstances of the case the questions mentioned were calculated to elicit, and did elicit, estimates of value based not upon a knowledge of what the land, as the defendant owned it, was worth, but upon opinions as to what it was, or would be worth as a part of a reservoir site, whether the union of all the lands required for that purpose could or could not be brought about without an exercise of the power of eminent domain. The admission in evidence of such estimate of value involved the hypothesis that the defendant was entitled to the value which was added to his land by the condemnation of it, together with other lands, in behalf of another. Such estimates were based upon a consideration of contingencies which were too remote and speculative to have any legitimate effect upon the valuation of the land as it was owned by the defendants, and the admission of such evidence by them involved the unwarranted assumption that the defendant was entitled to share in an enhancement of value resulting from an exercise of the power of eminent domain." The question which called for this ruling is in these words: "Q. Assuming that below plaintiff's lower or diversion dam there is approximately 100,000 acres of land that could be put under irrigation by proper canals and ditches; that plaintiff's reservoir for impounding water contained 6790 acres; that defendant's land sought in this case to be condemned from part of said reservoir; that the water supplied by said reservoir was sufficient *728 to annually irrigate over 100,000 acres of land; that 58 acres of defendant's land was in actual cultivation; 192 acres was susceptible of cultivation, and the remaining, grazing land. What, in your opinion, is the value of the entire tract of land sought in this case to be condemned?" This question was asked as a part of defendant's testimony in chief, fixing the valuation of the lands sought to be condemned. The question shows clearly that the court was ruling upon a question which comprehended a completed project and the valuation of the defendant's property as a part of the completed project after it had been united with other lands and subjected to the purposes for which the condemnation proceedings were being had. The language of the court, however, when scrutinized, does not indicate that the court intended to exclude testimony as to the adaptability of lands for reservoir purposes in condemnation proceedings. It only, in fact, holds that the value, added to the land in use by the condemnation proceedings, was not to be considered. There is nothing in the ruling of the court which excludes testimony as to any element which added value to the land as it stood irrespective of the action then being tried.
In the principal case of City of New York v. Sage,
In the case of McGovern v. City of New York,
In United States v. Chandler-Dunbar W.P. Co. et al.,
In the case of Mississippi River Boom Co. v. Patterson, heretofore referred to, the supreme court of the United States, speaking through Justice Fields, holds such testimony admissible. The property to be taken was available and adaptable for boom purposes, not as it stood alone, but as a part of the boom about to be created. In speaking of this phase of the controversy the court there said: "The position of the three islands in the Mississippi, fitting them to form, in connection with the west bank of the river, a boom of immense dimensions capable of holding in safety over twenty millions of feet of logs, added largely to the value of the lands. The Boom Company would greatly prefer them to more valuable agricultural lands, or to lands situate elsewhere on the river; as, by utilizing them in the manner proposed, they would save heavy expenditures of money in constructing a boom of equal capacity. Their adaptability for *732 boom purposes was a circumstance, therefore, which the owner had a right to insist upon as an element in estimating the value of his lands." This case has been frequently cited, and we think admits the testimony as to the adaptability of lands for reservoir purposes in all cases where nothing further appears than the simple fact of the institution of eminent domain proceedings.
In City of Stockton v. Vote, supra, this court quoted from the opinion of Gearhart v. Clear Spring Water Co.,
In Brack et al. v. Mayor and City Council of Baltimore,
In Spring Valley Water Co. v. Drinkhouse,
In the two cases of San Diego Land Co. v. Neale, supra, the lands under consideration were only a part of a larger reservoir site. To think the authorities above considered support the opinion of this court in the City of Stockton v. Vote, supra, to the effect that unless the testimony shows the impracticability or the insuperability of uniting several parcels of land by reason of the very nature of the situation, the practicability of uniting the lands in one parcel for reservoir purposes is a question of fact to be determined and considered by the trial court in awarding damages, taking into consideration all the purposes for which the lands may be adaptable or which may give them value. We find nothing in the record in this case showing either insuperability or impracticability. So far as the record discloses, no attempt was made in this case to unite the lands in one parcel by other than condemnation proceedings, and the mere fact that there may be highways running through the proposed reservoir site does not, in our opinion, create either an impracticability or an insuperability which may be declared such as a matter of law. We hold, therefore, that in this *734 case testimony as to the adaptability of the several parcels of land for reservoir purposes was admissible. The question then recurs, did the court err in refusing to grant the appellant's motion to strike out the opinions of defendants' witnesses as to the market value of the respective parcels of land, the motion being based upon the testimony elicited upon cross-examination, illustrations of which we have set forth? That some portions of the testimony elicited upon cross-examination might have been stricken out if a motion had been made for that purpose, may be admitted without further elaboration, but in view of the comprehensive motion made in each instance, a comprehensive consideration of the testimony becomes necessary, and if, upon the whole, the motion should be denied, the appellant has no grounds for complaint.
In determining values in actions of this kind where, for certain purposes, the lands are extremely valuable, and for other and different purposes, of little or no value, courts are always confronted with many difficulties, the chief of which is sometimes the apparent fact that there is no market value, in the strict sense of the word, but this does not entitle the plaintiff to take the lands without paying just compensation. In the case of Portneuf-Marsh Valley Irrigation Co. v. Portneuf IrrigatingCo., 19 Idaho, 483 [114 P. 19], this difficulty is aptly stated: "It is often difficult to determine the market value of the property, for the reason that there may be no general demand for the same, or it may be that the property is only valuable for a specific purpose, as was the case here, and the value can only be estimated upon the basis of the fitness of the property for the specific use on account of its formation, its location, or other specific natural or artificial adaptabilities to the use for which it is sought. In cases, therefore, where no general market value can be ascertained, these latter elements must be taken into consideration, and are proper subjects of inquiry in arriving at the value of the property. `Generally speaking,' said the supreme court of Iowa, in Ranck v. Cedar Rapids, 134 Iowa, 563 [111 N.W. 1027], `the true rule seems to be to permit testimony of all the varied elements of value; that is, all the facts which the owner would properly and naturally press upon the attention of a buyer to whom he is negotiating a sale, and all *735 other facts which would naturally influence a person of ordinary prudence desiring to purchase.'" (See, also, North American Tel.Co. v. North Pac. R.R. Co., 254 Fed. 417.)
In Marin Water Power Co. v. Railroad Com.,
In the case of Tracy v. City of Mount Pleasant, 165 Iowa, 435 [146 N.W. 78], where the court had under consideration eminent domain proceedings to condemn land which *736
constituted a part of a reservoir site, we find the following (quoting from Russell v. St. Paul etc. Ry. Co.,
In Southern Pacific Co. v. San Francisco Savings Union,
In the case of Brack v. Mayor and City Council of Baltimore,supra, in addition to what we have said as established by that case, we find it authority in support of the testimony introduced in the case at bar. We quote the following: "If we were to preclude the inquiry which the defendant proposes on that subject (availability of the land for reservoir purposes), we could not be certain as the case is now presented, that his rights were receiving the full measure of recognition to which they may be justly entitled. In our opinion, the defendant should have the opportunity, if he desires, to prove, if he can, that the property being condemned has an independent value and marketability as a reservoir site." As heretofore stated, the rule seems to be that upon direct examination the value for a specific purpose may not be stated, but in this case holding such testimony admissible upon direct examination is certainly good authority for holding that such testimony is proper when elicited upon cross-examination, and if proper testimony to be considered, it furnishes no basis for striking out testimony given upon direct examination which conforms to the accepted rule in California.
A considerable portion of the testimony upon cross-examination was directed to what a purchaser would be willing to pay for the property, who was seeking it for a particular purpose, or for the particular purpose in the minds of the witnesses which makes the decision in the case of Ely v. Conan,
In Portland S. Ry. Co. v. Skamania Boom Co.,
In Gearhart v. Clear Spring W. Co.,
In Idaho Farm Dev. Co. v. Brackett, 36 Idaho, 748 [213 P. 696], the supreme court of Idaho reviewed the different questions here involved, citing many authorities in relation to the rule followed in different jurisdictions, and a number of cases holding that it is permissible to show the market value, and that while the land may be shown to be valuable for a specific purpose, the money value of the specific purpose may not be shown upon direct examination; and comes to this conclusion: "We conclude that if the land sought to be condemned is shown to have a special value for a specific *739 purpose, the landowner may show whether it has a market value for that purpose, and if so, what it is." The cause was reversed for other reasons, and testimony as to the market value of other reservoir sites held inadmissible. In the Idaho case the court approves the rule admitting such testimony upon direct examination. By much stronger force would it be an authority in support of the statement that the admission of such testimony upon cross-examination is insufficient upon which to base a motion to strike out an estimate of value given upon direct examination.
[8] The record shows that the trial court did not award damages in any case equal to the opinion given by any of the expert witnesses, either upon direct examination or upon cross-examination. The cross-examination elicited from the expert witnesses a statement from every one of them that the market value of the lands for reservoir purposes was $100 per acre. The award made by the court was in the sum of about $80 per acre. Thus the ruling of the court in denying the appellant's motion cannot be held prejudicial, because it left in the record a great volume of testimony, elicited by the appellant, amply sufficient to support the award in each case. In other words, the cross-examination brought out the possibilities considered by the supreme court of Massachusetts in the case of Moulton v.Newburyport Water Co.,
While the record contains only general testimony as to the demand for reservoir sites, and no specific testimony indicating a present demand for the particular reservoir site in question, the record does show what we think the court may take knowledge of — the fact that water development in the state is causing an increased inquiry for available reservoir sites, and that the number of undeveloped reservoir sites are becoming fewer. This is due to the fact that nature, and not man, has marked out the course of the mountain streams and fixed the available reservoir sites thereon. It is common knowledge that the reservoir sites along the Merced, the Stanislaus and the Tuolumne Rivers, occupying the same general territorial vicinity, are being rapidly developed and utilized, and that irrigation districts and power companies are looking more and more to the mountains where there is available area to collect the winter rains as sources of water supply.
Appellant stresses the ruling in the case of Sacramento R.R.Co. v. Heilbron,
We may also call attention to the fact that the trial court was not bound by the testimony of the expert witnesses, and that in every instance to which our attention has been called a very material less value was found by the trial court than testified to by the experts, which would indicate that the trial court took into consideration all the testimony introduced in the case in endeavoring to arrive at the fair market value of the property, instead of giving effect to the extreme views of any witness, and in so doing we think followed the rule set out in 10 Cal. Jur. 972, to wit: "The province of such testimony is only to aid in coming to a conclusion"; (referring to expert testimony) "and it does not exclude consideration of other evidence which is pertinent to the issue *743 involved. Even if several competent experts concur in their opinions, and no opposing opinion is offered, the jury are still bound to decide the issue upon their own judgment, assisted by the statements of the experts. . . . It is for the trial court, and not the court of review, to determine the weight to be given to such evidence."
Even though, as claimed by the appellant, the experts were inclined to envisage a completed project, in testifying as to the adaptability of the properties concerned for reservoir purposes, the material modification made by the court in awarding damages from the values testified to by several of the expert witnesses justifies the conclusion of this court that all the difficulties of combining the several parcels in one tract were duly considered and weighed before the making of findings and the entry of judgment.
The cross-examination clearly followed the rule laid down in the case of Santa Ana v. Harlan,
[9] In action number 3176, as that number appeared in the case below, being for the condemnation of 310 acres belonging to Louis Vogelgesang and Gustave Vogelgesang, appellant contends that the court erred in relation to severance damages. The complaint mentions only 480 acres of land standing in the names of the two parties just mentioned, out of which it is proposed to take 310 acres. The two Vogelgesangs, by their answer, set forth that the 480 acres, out of which it is sought to take 310 acres, was really a part of a larger parcel containing 1,820 acres. It appears from the map set forth in appellant's brief that the 1,820 acres, irrespective of the question of ownership, lies in one continuous parcel. The contention is made by appellant that as different governmental subdivisions of said tract appear of record in the names of the different defendants, some of the tracts appearing in the name of Gustave Vogelgesang, and other governmental subdivisions appearing in the name of Louis Vogelgesang, there is not a unity of ownership. The defendants, by their answer, to which we have referred, allege that the land is in fact owned by them as partners, and the testimony set forth in the record warranted the court in finding that while the different governmental subdivisions of the tract stood of record in the names of the different defendants, it was in fact owned by the partnership. The testimony shows that the two defendants were using the tract, as described in their answer, as one parcel. Section 1248 of the Code of Civil Procedure specifies that: "If the property to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the part not sought to be condemned by reason of its severance from the part sought to be condemned" shall be considered in fixing damages. Section 1246 of the Code of Civil Procedure allows all persons having an interest in the land to come in as parties.
In the case of Perelli-Minetti et al. v. Lawson et al.,
The case of Oakland v. Pacific Lumber Co.,
[10] The final objection which we deem necessary to consider is the award of damages in the sum of $1,060 in action number 3161 as given in the court below, on account of an alleged easement in a highway appurtenant to two tracts of land, one denominated a 540-acre tract, the other a 320-acre tract. These lands are not contiguous to the lands sought to be condemned in action number 3161 above mentioned. The map shows that there is a certain highway called the Petersburg road, running through certain lands belonging to the defendants Ellingwood and Vogelgesang; that this road continues on down through the reservoir site, and at a point distant from the lands sought to be condemned another highway leading past the 540-acre tract connects with the Petersburg road. From the highway so connecting with the Petersburg road, at a very considerable distance, a trail leads off from, and connects with, the 320-acre tract. The closing of the Petersburg road, as found by the trial court, does not prevent ingress and egress to either the 540-acre tract or the 320-acre tract. In other words, both those tracts have other means of reaching the state highway. The defendants allege that the road through the Petersburg road is a private way. The testimony set forth in the record would lead us to the conclusion that it is a public highway. But, irrespective of whether it is a public or a private highway, the record shows that neither the 540-acre tract nor the 320-acre tract is so connected with, or contiguous to, anything involved pertaining to the condemnation of the lands described in action number 3161, as to furnish a basis for an award of damages herein. The reasoning which would award damages to these lands would award damages to lands owned any number of miles away, if the defendants were accustomed to travel over highways leading therefrom to the lands condemned. The sum of $1,060 allowed in action number 3161 just referred to should be stricken from the judgment in that case, and it is so ordered. In all other particulars the judgments in the actions pending upon this appeal are affirmed.
Thompson (R.L.), J., and Finch, P.J., concurred. *747
A petition for a rehearing of this cause was denied by the district court of appeal on March 15, 1929, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 11, 1929.
Shenk, J., and Waste, C.J., dissented.