*1 3480, Nos. May Appellate District. [Civ. and 3482. Third
1929.] EAST BAY MUNICIPAL DISTRICT, Respondent, UTILITY . KIEFFER, STEPHEN Appellant. E.
v *5 G. Solinsky, Farrell, Wm. Peck, T. A. James F. F. J. Snyder Rafferty Appellant. F. and Charles Ralph McGee, Irving Negrich, C. T. G. Wittschen,
P.T. Respondent. Harold Raines for Kieffer, FINCH, will P. J.The defendant who he re- judg- defendant, appealed has from the ferred to as proceedings separate in ments in three eminent domain. cases were consolidated for trial and to- three tried The gether. plaintiff district includes within its boundaries the Bay.
principal easterly cities on of San shore Francisco providing supply purpose For the a water cities these site, by a reservoir plaintiff selected referred parties site, River, the Lancha Plana on the Mokelumne object impounding with the the waters of that stream. ridge Northerly over a the Lancha Plana site is site, Arroyo referred reservoir another Seco site. granted by power was a license the federal operate proposed to construct and its commission dam and acquired it some lands reservoir the reservoir to the commencement Prior of these suits de- site. acquired large had title to areas of land fendant both Arroyo Plana and the options Lancha Seco sites and acquired lands both sites.' He had also purchase strip parcel connecting but a to all small land title sites, larger areas owned him the two reservoir parcel being strip in the middle and the this small being Vries. At the thereto Lee De time first title mere option suits were commenced the defendant held a two purchase De He parcel. this Vries thereafter allowed option expire subsequently but was renewed acquired title from the third suit De Vries before he filed.
September 7, 1926, complaint suit first filed con- and summons issued. The 5,657.1 demned consist that suit acres owned ridge. lying defendant on the Mokelumne side of the *6 manner, day, plaintiff On same like commenced immediately suit second to condemn 360 land acres of along River, by the Mokelumne Gas and the Pacific owned Company, option Electric on an which defendant held tjie purchase, acquired to to and which he title before the trial. After the commencement the first defend- two suits the acquired ant to title 1248 acres of other the Mokel- lands ridge, umne side of the options on which he when the held first two suits commenced, 20, 1926, were and on December by commenced proceeding, the third time, to condemn those lands. to Prior stated, acquired defendant had title to the De Vries parcel land, thereby consolidating holdings, except all his parcel. by suit, a small isolated The lands taken the third however, entirely by were separated those condemned in proceedings two from belonging first other lands to lands defendant. The condemned in the three were suits wholly but, within the excep- not reservoir site with two tions, included all lands, of the contiguous defendant’s damages being thereby severance reduced to a minimum. The defendant damages by his answers claimed option reason of severance of under from lands lands by him which were plain owned taken. On motion of the allegations tiff, the court out struck answers damages. relating to may
It
option
be conceded that an
purchase
to
land
but
property,
it does not constitute an
interest
the land
option
“An
itself.
is not
property.
a transfer of
No
thereby.
conveyed
right
title
is mere
a
of election ..
.
reject
present
accept or
to
a
offer within
time
therein
(Ware Quigley,
fixed.”
v.
377,
176
698
694,
Cal.
Pac.
[169
Ludy
Zumwalt,
;
119,
85
App.
Cal.
130
Pac.
378]
[259
being
52].) The holder
a mere option
purchase
land
any part
not
compensation
condemned is
entitled to
(Russakov
paid
McCarthy Co.,
therefor.
206 Cal.
;
Upper
682
Pac.
Water
New
In re
Front on
808]
[275
under
911].) The lands
Bay,
Prior third time the commenced acquired defendant De parcel, had title Vries thereby establishing physical contiguity between the two larger He parcels. right that therefore he “has the contends question damages, severance with reference filed, just though last suit determined the first filed, except had not been two suits in so far would as he by considering receive double allowance” each facts of without reference to those of the case others. However argument plausible may blush, this seem at first it will analysis. not At the time bear the first two suits were acquired commenced the defendant had title third, to be condemned and the latter lands entirely separated by were the lands involved in the first from all lands owned two suits defendant. thereby acquired Had the first two suits been tried title third before the one commenced there be no would appellant’s basis contention lands taken part parcel Arroyo third suit are a same as the Seco The fact that the third suit lands. was commenced before rather than the others tried can make no thereafter complaints difference. The defendant had answered and, therefore, knowledge two suits must have had the first *8 thereof, prior acquired the to time he title to lands by the finally acquired by third. condemned title against plaintiff in the first suits, intervening two rights persons having actual or constructive notice thereof; suits, such relates back to commencement (Smith coat, 196 96 Ala. South. 717]; School [71 Jeff
249 1089]; S. W. Smith, 530 113 Ark. Ogden v. [168 District of 51]; Atl. 105 Me. Co., Bangor & A. R. Currie N. E. Co., 214 Ill. Ry. W. Chicago, & S. Dowie v. N. damages right 652.) to The defendant’s Jur. 354]; if, suit is same in the third by of severance reason commenced, he proceedings the first two at the time in those lands conveyed plaintiff the condemned had suits. de had determined
After trial court not constitute did lands the two reservoir 'sites fendant’s impaneled single jury to determine parcel, a At entitled. compensation to which defendant again sought to intro defendant before trial single show that all his lands constituted duce evidence to objections to intro parcel. sustaining After numerous evidence, “I see the said: duction of such can absolutely to hereafter purpose it, intended jury, somebody.” In the instructions to the mislead final . . arguments of . the court said: “Remarks and counsel arguments any during remarks the court such made your disregarded by you arriving . . should at . attempting justify the verdict.” Without remarks sufficiently question, making error of is not them deemed serious, in require quoted, view the instruction reversal. proof
While permit the court refused to that the market Arroyo value basin defendant’s Seco lands depreciated would be taking of the lands condemned, permitted tending the defendant was to introduce evidence availability Arroyo show Seco basin as a reservoir site enhanced value of the the market taken, showing the evidence that when the reservoir Lancha Plana surplus is full the waters of Mokelumne River can be readily through ridge diverted the reservoir and across the Arroyo In over- mentioned into the Seco basin. an effort to evidence, plaintiff come the effect of such introduced its license, federal the terms which the re- quired, expense, at its own cost and construct and main- diverting spillway purpose surplus tain a for the waters thereof authorized user Arroyo Seco basin. *9 permitted
The defendant was to show the volume flowing of water in River, capacity the Mokelumne the Lancha Plana reservoir and the capacity of a reservoir Arroyo which basin, could be constructed Seco power amount of electric developed, which could be irrigable water, lands in need in towns, and cities cluding district, those sup be could plied power with water and from such a combined reservoir system and the amount now consumed them, the available system use a pro as means of flood control and of tecting delta Joaquin lands of the Sacramento and San against Rivers salt water. defendant The was not permitted to show present selling prices of power, water and irrigable increase market value of the lands men a tioned dependable which would result from sup water' ply,” the increase in value of delta lands which would be by holding caused water, back the and salt other evidence tending to show be the returns to received from the sale power. of water and electric defendant to make proof by own by cross-examining his witnesses and plaintiff’s proceeding' witnesses. In a to condemn com pleted power system, water and in full operation, evidence question character bearing would have a direct upon system. supreme value of the court of this state has never said use, “that the value in as contradis tinguished from the estimated value of proposed prob use, might given lematical not be in terms of money, not as question, determinative but as evidence of the ulti jury mate fact which upon is called find, namely, (Oakland value.” market Coast Lumber & Pacific Co., supra.) Mill But the relation between the value of land proposed in a price reservoir and the current of water and energy electric conjectural is too remote and be reliable assistance to the in determining the market of the land Although value taken. rejected the evidence proof past consisted of present facts, the inference sought to highly be speculative. drawn therefrom is Specu conjectural lative and prospective calculations of receipts expenditures consequent profits to be derived from prospective enterprise only light throw no on the issue of the market value of the land to be used in the enter but prise, operate to confuse mislead the minds of Land, Neale, 88 Cal. jurors. (San & Town Co. Diego said “It 604, 25 Pac. L. R. A. every proper to consider some cases element a sale consideration be taken into value which would qualification, But needs some parties. this private between by the urged often speculative reasons are since remote (Lewis on valuation claimed.” support seller in 709 of 706.) In Domain, section ed., 3d sec. Eminent may *10 illustration, is “It work, by way it said: of same cranberries, it but raising for shown that land is suitable cranberries, go price of competent is not into to is well might raised, the like.” quantity be ques in in of the character settled this state that evidence 202 (City Angeles Hughes, tion inadmissible. Los v. of Vote, 76 731, v. 737]; City 734 Pac. Stockton Cal. [262 of 369, Joaquin Canal App. ; 400 etc. Cal. Pac. San [244 609] Pac. Stevinson, App. 767, & Irr. 63 769 v. Cal. Co. [220 conjec which leads to The admission of evidence harmful, cross- whether on equally speculations tural or direct. examination requir in court
Appellant erred contends cross-examination, market “to state the witnesses, on ing his Such reservoir use eliminated.” the land with the value of was, effect, testimony statement value Great allowed particular purposes. latitude is for land of witnesses who have testified to the cross-examination 1028.) (10 City of Cal. Jur. In value land. market of Ellingwood, following language supra, v. Stockton Tracy Iowa, City Pleasant, Mount 435 quoted from “Undoubtedly inquiry proper W. be N. would 78]: purpose thought as cross-examination to what witness on for and his notion of market property available its value purpose.” such for knowledge testing the purpose such
For opinions as impeaching their to values the witnesses them, to ask permitted cross-examina knowledge state their of other sales of land in the tion, to recently paid by vicinity prices defendant (10 364.) lands taken. This was not error. Jur. only instructed that such evidence “can The court opinions you testing considered as witnesses who testified to the value the lands to be con- ’’ demned. Oampini The court refused to allow the witness give opinion to his as the market of the land. to value knowledge His of market values of lands was weight might give to opinion much to he stated, permit but it him would not have been error to give However, produced it. twelve defendant ' witnesses, opinions the market gave who their taken, ranging $10,348,982.50 value of the from rang damages $15,000,000, and their estimates of severance ing $210,000 Vallejo $1,680,000. In R. R. Co. etc. 252], Co., 545, Reed Orchard 169 Cal. considering ruling, a similar the court said: “It does subject not appear qualified at witnesses on all difficult to obtain. Before this witness was called already defendants had had called seven witnesses who subject Hence, on the rul testified value. even if the ing clearly erroneous, had been cannot say we sufficiently prejudicial warrant a reversal.” questioned
One defendant’s witnesses was regarding cross-examination sales land Exchequer basin, reservoir an effort to account the low *11 paid necessary prices land, for such he testified that it was to move railroad from that $5,000,000. a basin at a cost of why In redirect examination he was asked he included the $5,000,000, expended so in the cost of that reservoir. The plaintiff’s objection court question. sustained the to the objection might While the well overruled, have been no appellant by was prejudice by sustained reason of the rul ing sought made. The to by reason the be shown witness perfectly every juror is obvious one must have already facts proved. inferred from the It pre cannot be any juror lacking that in intelligence sumed so as not that, things being know other a equal, reservoir site which greater is free from obstructions is of value than one from which an great obstruction must be expense. at removed
Appellant contends that it was error admit in filings evidence “certain water of J. W. Preston et al.” filings out, of the facts shown brought Most these objection, on of without cross-examination the defendant’s long filings witnesses before the themselves were introduced. introduced, filings were Subsequently, and before Preston list of the gave examination, defendant, on redirect circumstances Under thereof. the dates filings and complain of the heard appellant cannot stated the be. filings introduction of evidence. made report in a sought that, to show
The defendant that engineers, it was stated by one of its plaintiff “and none supply water a reliable was without the district growth future natural upon meet relied that can.be loca consequently, other have, years. . . Industries . imperatively neces when has come . The time tions. . . undertake, as quickly Bay District sary the East for large supply water generous of a possible, provision all, end, for high degree once purity, and to of a hanging like danger been that has water famine generation, impeding past neck for millstone around its very threatening exist growth their cities and the' objection plaintiff’s to such tenee.” The sustained statements, therein, report and similar parts of Appellant was effect. evidence to same as well as other stating parts report however, to introduce permitted, large, never been and the surplus supply has that “the (Mokel . rations. . . The times been short district has at qual of which the nearest supply is the umne) designated satisfactory. source” “the . . ity is . purest, safest, the best cheapest, quickest, the opinion a supply We are of the supply available. Mokelumne river can be obtained from the D. G.M. project capital the first unit of this at construction $39,000,000.” urged expenditure about the state and condition tends “to show excluded evidence viewpoint question, ‘market’ availability for reservoir use.” of their appellant right
Granting that the had the to show district, well as other cities that the cities communities, an available market furnished impounded ques the reservoir in which could water parts abundantly tion, fact shown *12 skeptical Indeed, in evidence. the most report admitted proof willingness require not further thereof than the would plaintiff expend $39,000,000 supply to to secure a of appellant did water from source. The not have necessity obtaining right plaintiff’s supply to show the a particular special value water from that source or the of. plaintiff supply. Vote, to of such a (City Stockton v. supra; City Ellingwood, supra.) v. Over Stockton objection permitted the court for counsel defendant’s open jury. argument to close the a It was matter within the discretion the trial court. (Mendocino County Peters, 2 24, 29 Pac. App. 1122]; People Hickman, Cal. 470
It is contended that abused its discretion the court limiting argue period defendant’s to time case to a Admittedly, argument three hours. “the duration of an largely a matter which rests trial discretion single court.” In this case there was but a issue jury. determined parties Counsel for both consumed part of argument the time them in mat allotted to right ters which the had no to consider. mate bearing rial on issue of evidence value was not difficult to understand cannot held that limitation argument opening abuse of an discretion. Plaintiff’s adjournment completed at about the usual in the eve time ning, question arose to the hour at which court morning. argued the next Counsel should convene who nine, “I prefer for the defendant said: would . . . case get through I may want before twelve. because ... long.” Appellant take that has not not called attention to objection placed any the limit time record argument request or for for further time. It does appear that the prejudiced by defendant was limi tation. gave following
The court instructions: you “I instruct damage the amount of the be awarded to Stephen should the defendant E. Kieffer for property be condemned in actions is these value, market which term value’ means ‘market highest price, in terms of money, estimated which such brought, if property exposed ... would for sale market, open with a reasonable within which time purchaser buying knowledge with find all the uses purposes said are adapted, and for capable. question which same are . .'. is, you Stephen to consider if E. Kieffer had wanted to sell *13 dates they in on the were in condition properties these for the he have obtained what could mentioned, heretofore a rea- market, having been allowed properties on the said a buying with purchaser find in which to sonable time prop- such knowledge purposes to which all uses and properties were adapted for which said erties would buy who capable, parties who wanted to give properties. fair value to was worth not to what the land
“You are consider speculation owner, Stephen Kieffer, the the defendant E. worth merely uses, he claims it was or nor what possible to him. ... value’ term ‘actual ‘market and the
“The term value’ in means one as in these instructions used these cases and highest thing. price It in terms the same means question been money properties at could have which the sell, contemplates is forced to sold. It a seller who not ... willing price. contemplates a sell fair but who is to at a It buyer to willing buy price to fair and desires who is at a buy to property question, kind of but not forced is buys buy. contemplates buyer It who with an accurate knowledge property. all It characteristics of ... contemplate sale, an sale, not execution or a foreclosure does or sale.” forced objects
Appellant terms “fair value” price” foregoing “fair in the is used instructions. apparent that the word “fair” as here used means “honest” “average” “middling.” jury rather than or The could been misled the use of such terms after ac definition curate of the term “market value” which the Objection repeatedly gave. is also made to the arriving statement at land the value jurors are not consider what the defendant “claims it Appellant him.” contends that this worth to disregard effect a direction the defendant’s testimony manifestly value of land. The is contention with property What claims out merit. the defendant is him” actually “to him” or what it is worth “to worth immaterial, being only value, he entitled market re its gardless of him.” what it worth “to court instructed the the defendant required prove prepon- issue “is his side By preponderance evi derance of the evidence. testifying dence is meant not the number witnesses party, produces con for either but that evidence which jurors.” No unprejudiced viction minds of the “preponderance evi other definition the term requested by dence” was the court. party given either or in the ordinary meaning “conviction,” word used, being sense here to con convinced, the state satisfy by proof. vince is to produce To conviction satisfy mind, being synonymous. is to mind the terms *14 containing one of terms been Instructions or Doth these have (De many Johnson, considered La 203 cases. v. Torre 374 485]; Cal. Pac. Boa San Francisco-Oakland T. v. [264 Rys., Ross, 182 93 2]; Cal. Pac. Estate 179 Cal. [187 510]; People Miller, 629 Pac. v. 171 649 Pac. [178 Cal. [154 Ergo 468]; v. Merced Falls & Co., Gas 161 334 Elec. Cal. (N. S.) 79, L. R. A. ; Gregoriev 119 North Pac. v. [41 101] R. App. western Pac. 95 Cal. 428 Pac. Co., 76]; Harker [273 Co., App. Edison 83 v. Southern Cal. 204 [256 California Angeles 848]; City Schumann, Pac. Los S. 78 H. Dist. App. 737]; 353 Estate Guilbert, Cal. Pac. 46 Cal. [248 55 Pac. App. ; Goodwill, 44 App. Lawrence 807] 440 In Miller case the defendant murder only on trial for and his was that he defense killed insane at the he On time deceased. the issue of insanity instructed the “preponderance the court that degree means that proves evidence evidence which to a or, words, certainty, degree in other moral that proof that produces unprejudiced conviction in an regardless of mind, proceeds.” whom of witnesses from it court, number The case, gave also the usual definition in that of “reasonable By similarity language reason of doubt.” in the two jurors probably were instructions misled into the belief prove on the defendant to his alleged it devolved that insanity discussing In reasonable doubt. beyond a a similar instruc Boa may case it said: “It tion well happen in given an cases that instruction in form here some would necessarily prejudicially be considered misleading. This is apt regarding be true of an especially instruction insanity proving burden of defense of criminal case concerning other instructions of proof where burden are impress upon guilt framed the jury course that must beyond a reasonable certainty and moral proved to a mislead- not ease are instructions other doubt.” this out- the defendant. required of ing proof as to. of, complained standing feature of instruction jury, that impressed most one which doubtless neces- does not number greater of witnesses testimony of the They prob- the evidence. sarily preponderance constitute a bound merely they ably it that understood to mean number conformity with declarations of to decide against Academi- convincing evidence. witnesses more it should not is inaccurate cally, the instruction jurors were highly improbable but given, been in- Appellant many thereby. misled contends given by erroneous, but a careful structions are examination of them fails to substantiate contention. give refusal to Appellant complains of the court’s relating provisions an instruction of article 16 plaintiff’s federal license. The was introduced license objection. formal evidence over the defendant’s Prior to its introduction, however, article had been read before testimony jury and provisions much the effect of its objection. given, had been all 16 and without Articles of the license read follows: 16.
“Article shall The licensee construct said Lancha dam, spillways surplus reservoir and Plana so waters *15 through of aqueduct excess amounts carried its to municipal may supply its domestic needs be diverted from said reservoir northward to Jackson creek water- permit, and the shed; any licensee shall charge, without having specific appropriator authorization from the division rights, of California, surplus of water state so to divert such may lawfully be diverted; provided, waters as use appurtenances by said dam and licensee for pur- storing pose through waters be to carried aqueduct its deemed be paramount to shall be use thereof and to be superior diversion; their use for anyone to such so diverting shall save the licensee any dam- harmless age resulting therefrom; and that the licensee will be not permit required hereunder to such diversion unless the purpose primary thereof for a beneficial other than use generation power.” licensee, the 29. With the written consent of the “Article seal, may by commission order made its after under alter, act, modify, public required by notice section 6 of the enlarge omit, by law, any one or or in so far as authorized ’’ provisions more of the conditions or this license. jury: request
At the defendant’s the court instructed the “In determining market value may require- you condemned . . . . . . consider the ments of power the license the federal commission issued to considering you will do so plaintiff, . . . the same but you the same considered such manner that would have person.” granted license it had been to some other given No other instruction was in relation such license. to relating appellant The instruction to which the article refuse, contends it was to error reads as follows: parties “The defendants to the license are issued power you by the federal commission and are may instructed that this license be altered with- or modified consulting out the the defendants without consent of agreement defendants mutual power between the federal that, plaintiff, too, commission and without the consent right power This the defendants. the federal com- plaintiff modify provisions mission and and alter the applies provisions license said license intro- concerning discharge any in this case duced water into' creek watershed from the the Jackson Mokelumne river.” provisions read 29 was before the and its Article frequently attorneys referred and discussed during the trial. While the instruction in the witnesses given, might well have been seems question clear that the jurors provisions understood the must have of article 29 meaning any instruction as thereof. without refused to in testing instruct who had considered witnesses other sales in arriv opinions of jurors market value of the land taken might ing at the purchaser or whether whether the seller in “consider appreciated knew and adaptability sales property purchased.” or sold purposes useful is but the statement of a mere common instruction proposed juror being would consider without told place so. do *16 give refused to court series of The instructions re defendant, containing varying in terms by quested in forth the first as thereof, follows: set propositions sought fix “You are not the market value of the lands plaintiff, to be condemned the necessities of the but this you plaintiff does not mean that cannot consider the as a competitor for the reservoir site constituted the use of sought de- to be other lands. The condemned and generally a site in which to water for use mand for store may by you, among such demands considered other you Municipal may Bay consider the demands of the East prior Utility they District as existed the date of and at in respectively the dates the summons issuance several cases.” jury request
At the defendant’s instructed the as follows:
“You are not to consideration the necessities of take into plaintiff fixing property in value of the market sought you condemned; however, may to be consider the competitor sought plaintiff as a for the land condemned respective prior at the time the summons were issued and thereto.” readily perceived jury
It is not manner what could competitor consider the as a for the land considering to be condemned without the demands of plaintiff. The used “demand,” word as in the instruction commodity, refused, purchase accom- means “a desire to panied by payment.” “competitor,” means word given, may used in the who instruction be defined as “one buy property desires and the same in the endeavors to or payment.” same has means market as another and appears proposition thus that the of law stated the instruc- given tion is in substance the same that contained jury “de- one refused. To instruct to consider the plaintiff, term, mands” of the without definition of that clarify. than would have tended to confuse rather urges many proposed appellant instructions They given. carefully have been consid- should been compared given, and ered and with those no error has been rulings of the court relation thereto. discovered judg Appellant contends that the verdicts supported by In the evidence. his brief it is ments are not ranging from witnesses testified to values said: “Defendant’s $15,000,000. testified $10,348,982.50 Plaintiff’s witnesses $191,890 $280,500.” The ranging to values $336,452.60, at or round num- fixed the value the sum *17 260
bers, an $46 acre. perceived It is not respect in what evidence is insufficient support judgment. the verdict and It is true that the evidence would larger supported verdict, but the awarded, amount to be within the reasonable range of the evidence, question was a for the sole determina- tion of the jury and the trial court. cannot be held as It a matter of law greater that the market of the value land is \ than was found jury. reporter’s
The transcript 5,000 type- covers more than pages. written briefs, The supplements exclusive of the con- taining the on, evidence relied contain 900 As pages. over is usual in a record length, of such some technical errors are to be therein, found appears but none of them prejudicial. specifically To points discuss all raised appellant opinion would extend this to an unreasonable length. They carefully have all been examined and it any not deemed that of them not discussed herein have merit. Neither is it pointed believed that the errors out opinion this warrant a reversal. judgments
The are affirmed, appellant to recover costs of appeal. (R. L.),
Thompson J., J., and Plummer, concurred. petition rehearing A of this cause was denied Appeal 1929, District Court of 26, following June and the opinion then rendered thereon: appellant
THE COURT. has petition filed a for a rehearing. again urged physical
It contiguity of dif parcels necessary of land is not ferent to entitle the owner proceeding condemnation to severance damages and that contrary statement Oakland v. Coast Pacific Co., 392, & Mill 171 399 Lumber Cal. Pac. 705], is [153 appellant in that case had dictum. insisted in the trial separation physical was negligible “that because court physical contiguity not use and unity the controlling held adversely The trial court to this factor.” contention. judgment affirming supreme court held unity In controlling and, factor after quoting use was Procedure, of the Code Civil 1248 section relative damages, very said: “This language limits in severance
261 damages property taken and terms award of injured by sever contiguous damages property resultant language is not. dictum. property taken.” This ance “ grounds, upon either Where two there are ap rested, can be judgment of the trial court .the obiter; both, ruling pellate on neither sustains court validity equal judgment court, and of but each is the City (Union Ft. & Pac. R. Co. Mason with the other.” Rep. 134, Sup. Ed. 26 Ct. L. Co., R. 199 U. S. D. Pac. Notes]; Williams see, also, Rose’s v. Southern 19; U. S. Co., App. unduly restricted argued the trial
It is further plaintiff’s witnesses. cross-examination *18 the should be allowed in cross- wide latitude is true that n equally but it that a trial of is true witnesses, examination power “discretionary over cross-examination court has ’’ appeal only in case of abuse thereof. be disturbed an will 97.) inquiry field in (27 The cross-examination Cal. Jur. of testing credibility of purpose the the of a witness testimony weight of his extensive that the is so the trial keep given be in must a wide discretion order to court bounds; examination within reasonable the such otherwise overlong. appellate of would be trial cases When an upon is to decide such called whether discretion has abused, sufficiently inquiry the wide been whether credibility weight range been allowed test has particular question whether some rather than should have (People McDonald, v. 545, allowed. 167 547 been Cal. 256].) 5,000 pages of reporter’s Pac. the tran [140 abundantly script liberality bear witness extreme permitting court in of the trial wide cross-examination of in When question this ease. the witnesses is asked testing of the purpose credibility the ostensible of a weight of testimony, the his or trial witness court has discretion to determine whether a reasonable that is in fact question of the purpose purpose or whether its real jury get inquiry substance of the before the an “to as (People Weber, 325, fact.” 149 Cal. 343 evidentiary People Ferdinand, 555, 562 ; Pac. 678] justified In this case trial court was purpose real attempting, that the in in belief defendant’s .the plaintiff’s witnesses, cross-examination show by present selling price power water and electric get upon those facts before the which to evidence base prospective calculations returns to received completion project. after the That such belief was not without foundation as shown argument during jury, of counsel for defendant before computations which there was exhibited the fol- such as lowing: supply use, gal- 200,000,000 “Available for domestic daily. per lons Sale of water for domestic use at 10^' gallons, 200,000 10^, $20,000 per day. 365x20,000, times $7,300,000 per year.” rulings of the trial court .excluding proof prices mentioned and similar evidence upon speculative profits which to an base do not constitute of discretion opinion. abuse under the authorities cited opinion Appellant contends that the cases in the cited support the doctrine relation title “relate rights respecting condemned, intervening being the land filing suit, pendens, payment between or lis and the contrary nothing opinion award.” There import and, acquired plain- finally since titles tiff to the lands in first suits back two relate to the com- thereof, mencement contention that had defendant’s he physical established between the lands in the union third Arroyo through suit and the Seco lands the medium of those certainly two suits “rights the first the assertion of respecting being the land condemned” in If those suits. the third had owner suit retained the ownership purchased thereof and had all of the defendant’s *19 knowledge pendency with of suits, the lands, first two hardly contended, being it would the other circumstances stated, that he damages by be entitled the same would of in of the severance the lands reason the third suit Arroyo appear lands. Seco It does not the that de- rights any respect in are different. fendant’s Appellant substance, says, in plaintiff that proceedings the first any have abandoned two at could time same, days judgment thirty after final and at within have proceeding could taken the third time event, under the that; in such doctrine of relation as stated opinion, deprived the defendant have been in the would of damages to which he would have severance been entitled. being land purposes, was reservoir Since condemned absolutely acquire necessary plaintiff it was at
263
To have
each suit.
greater part
the lands
of
least
therefore, would
proceedings,
any
abandoned
one
for it seems clear that
project,
abandon the
been to
have
effect, grant
cannot,
suit
plaintiff in a condemnation
expedient
abandoning
by
simple
trial
himself a new
commencing
then
judgment and
after final
proceeding
(Central
property.
same
proceeding to condemn the
another
;
E.
110
S.
Georgia
Thomas, 167 Ga.
Ry.
v.
[144
739]
Co.
Chicago,
A heard cause Ap- Court, judgment Supreme after District Court 1929, Supreme July denied Court peal, present All Justices concurred.