MILLER, Circuit Justice.
1. Under the charter of the boom company, the mode of appropriation of lands is particularly prescribed. At the time when the removal was applied for. the controversy between the boom company and the land owner had assumed the shape of a suit docketed and pend • ing as an action at law in the state court, and, in our judgment, it was such a suit as might be removed under the act'of congress in that regard [18 Stat. 470].
2. In view of the large logging and lumber interests of the state on the Mississippi river and of the necessity for booms, and of the special provisions of the charter of the boom company reserving legislative control over the said company and its tolls and charges, this court cannot hold that it was beyond the legislative competency to authorize the boom company compulsorily to acquire, on making compensation therefor, “such lands as may be necessary for properly conducting the business as herein authorized and required.”
3. Conceding that the charter of the boom company authorizes the apropriation in fee of the lands of others to its own use, it is not for that reason unconstitutional. Dill. Mun. Corp. § 456, and cases cited.
3. This question of value is one for the jury to determine upon the whole evidence and all the circumstances of the particular case, guided by the rules of law above stated. It is the universal experience of courts that where any fact depends upon the opinions of witnesses, these opinions are generally found to be variant and conflicting. This case affords a striking illustration of this observation. Witnesses professing to be conversant with the value of such property vary in their estimates of the value of the plaintiff’s islands all the way between $300 and $20,000 or $30,000. Some of these opinions must be wrong and of little value, and all of them may be mistaken opinions. You must form your own judgment upon all the facts before you (including, of course, for what they are worth, the opinions as to value of the various witnesses). It is your judgment that must govern. You may fix upon or adopt, if you think it just, the value heretofore fixed by the commissioners, or a greater or less value. If there have been sales of these islands or of other islands similarly situated and adapted to the same uses, or contracts with land owners, by the boom company, for the use of other lands in the vicinity for boom purposes, these may be resorted to by you looking at all the circumstances of these sales and contracts, in the determination of the ultimate question of value, and. ordinarily, actual sales or transactions are better evidence of value than the mere opinions of witnesses on the subject, especially where the value concerns property for which there is not a market demand, or a known or easily ascertainable general value.
(The jury returned a verdict for over $9,000, which was reduced, as a condition of denying a motion for a new trial, to $5,500, but the boom company, nevertheless, sued out a writ of error.)
[The supreme court affirmed this judgment. 98 ü. S. 403.]