The facts are sufficiently stated in the opin- | to sanction it. The definition of a new trial is ion of the Commissioner.

Messrs. Luce & Henderson and Henderson & McDonald, for appellant:

The question of the value of the land in suit was, and is, a specific issue, and was submitted to the jury separately and apart from any and all other issues of the case, and was separately and clearly and expressly found and returned by the jury; and a separate notice and motion for a new trial as to that issue was sufficient.

See Code Civ. Proc. §§ 656, 1248; Gilmer v. Lime Point, 19 Cal. 60; Argenti v. San Francisco, 30 Cal. 459; Marziou v. Pioche, 10 Cal. 545; Soule v. Dawes, 14 Cal. 247; Soule v. Ritter, 20 Cal. 522; California Southern R. Co. v. Southern Pac. R. Co. 67 Cal. 59; Lake v. Bender, 18 Nev. 360; Jungerman v. Bovee, 19 Cal. 364, Billings v. Everett, 52 Cal. 663; Glascock v. Ashman, 52 Cal. 422; Watson v. Cornell, 52 Cal. 91; Le Clert v. Oullahan, 52 Cal. 254; Phipps v. Harlan, 53 Cal. 87; Evans v. Jacob, 59 Cal. 628; Woodward v. Horst, 10 Iowa, 120; Dawson v. Wisner, 11 Iowa, 8; Berner v. Frazier, 8 Iowa, 77; Zaleski v. Clark, 45 Conn. 404; Holmes v. Godwin, 71 N. C. 309; Merony v. McIntyre, 82 N. C. 106; People v. N. Y. Com. Pleas, 19 Wend. 118; Price v. Harris, 10 Bing. (25 Eng. C. L.) 331; Kent v. Whitney, 9 Allen, 65; Patton v. Springfield, 99 Mass. 635; Hubbell v. Bissell, 2 Allen, 201; Hodapp v. Sharp, 40 Cal. 69.

Section 1249, Code of Civil Procedure, provides that in such cases as this the "actual value" at the date of the summons "shall be the measure of compensation." Now, "actual value" at the date of summons, certainly does not mean a possible value at some indefinite future date, depending wholly upon speculative uncertainty.

Sec California Southern R. Co. v. Kimball, 61 Cal. 91; Gilmer v. Lime Point, 19 Cal. 47; Central Pac. R. Co. v. Pearson, 35 Cal. 247; Stockton &C. R. Co. v. Galgiani, 49 Cal. 139; Boom Co. v. Patterson, 98 U. S. 403 (25 L. ed. 206); Virginia & T. R. Co. v. Elliott, 5 Nev. 367.

Messrs. Hunsaker, Britt & Lamme and J. E. Deakin for respondents.

as follows: "A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees." Code Civ. Proc. § 656.

Now, as the law makers cannot be supposed to have thought that the majority of cases involved only one issue of fact, there is at least some implication that they intended that there might be such a thing as the new trial of a single issue, whether there were other issues or not. The analogies of other provisions and previous decisions support this view. Thus, a party may appeal from a part of a judgment or order. See cases collected in note 4, § 185; Hayne, New Trials & App.

So it has been held that, where a party serves his notice of intention to move for a new trial upon only one of two defendants, it is proper to grant a new trial as to the one served, but not as to the other. Wittenbrock v. Bellmer, 57 Cal. 12.

And it has always been the practice (except in cases of a peculiar character) for any party who is dissatisfied with the result to move for a new trial as to himself, leaving the judgment to stand as to the other parties. And in one sense such a motion is a motion for a new trial as to a part of the issues. So it is settled that, upon an appeal from the judgment, the appellate court may order a new trial as to a part of the issues, leaving the decision in force as to the remainder. Marziou v. Pioche, 10 Cal. 546; Jungerman v. Bocee, 19 Cal. 364; Kinsey v. Green, 51 Cal. 379; Le Clert v. Oullahan, 52 Cal. 253; Watson v. Cornell, 52 Cal. 91; Swift v. Canavan, 52 Cal. 419; Billings v. Everett, 52 Cal. 661; Phipps v. Harlan, 53 Cal. 87.

And, if this can be done, it is difficult to assign a satisfactory reason why the party could not ask the trial court for the same relief in the first instance. The cases which hold that a motion for new trial is premature if made before all the material issues are disposed of are not in conflict with our conclusion; for in the case before us all the material issues were disposed of before the motion was made. We see no inconvenience that can result from the prac tice. The time to move as to the remaining issues would not be extended by a motion as to a part; and the party would lose his right to attack the findings as to the remaining issues, unless the time should be extended, which could only be for a short period without the consent of the parties. And, this being so, the result would simply be the elimination of a part of the controversy, which is not, in itself, undesirable. The question arose in Nevada upon a similar statute, and the court, after an elaborate examination of the subject, held that a motion for a new trial as to a part of the is ap-sues was permissible. Lake v. Bender, 18 Nev.

Hayne, C., delivered the following opinion: Proceeding to condemn land for the purposes of a reservoir. It appears from the findings that the use was a public use; that the value of the land to be taken was $280 per acre, amounting in all to $98,126; that the damage to the remainder of the tract amounted to $1,805; and that the value of the improvements was $300.

The plaintiff moved for a new trial as to the issue concerning the value of the land sought to be taken, but as to no other issue, and peals from the order denying the motion.

The defendants make a preliminary objection that a party cannot move for a new trial as to a part of the issues. So far as we are advised, this precise question has not been decided in this State. But upon principle, and according to the analogies of existing rules, we think that the objection is not well taken. There is nothing in the Code either expressly forbidding or expressly authorizing such a course. The implication from the language, however, seems

361.

We are satisfied with the rule laid down in that case. It is possible that there may be cases where the issues are so inseparably blended as to render a separation impracticable. We express no opinion as to that. But it is clear that the present case is not of that character. The preliminary objection should therefore be overruled.

Upon the merits, the general features of the case are as follows: the plaintiff was the owner

of a portion of a valley called the "Sweetwater | Little Rock Junction R. Co. v. Woodruff, 49 Valley," and of the right to divert the waters of Ark. 388; Low v Concord R. Corp. 63 Ñ. H. the Sweetwater River, and before the com- 558, 2 New Eng. Rep. 275; Searle v. Lacka mencement of the proceedings had commenced wanna & B. R. Co. 33 Pa. 57; Arcata & M. R. to build a dam upon its own land. The de- R. Co. v. Murphy, 71 Cal. 122; and see Cooley, fendants were the owners of a tract above the Const. Lim. 565; 2 Dillon, Mun. Corp. $487dam. There was no practical site for a dam by which is undoubtedly meant, not what the upon defendants' land, either on the part owner could realize at a forced sale, but " the sought to be condemned or on the remainder price that he could obtain after reasonable and of the tract. But it was shown that the water ample time such as would ordinarily be taken by collected by the plaintiff's dam would back up an owner to make sale of like property." Little and flood a portion of their tract, and this is the Rock Junction R. Co. v. Woodruff, 49 Ark. 390. part sought to be condemned.

We are satisfied that there was error occurring at the trial sutficient to require a reversal of the order appealed from; but, as several questions have been argued which will arise upon a retrial, we have examined them with the care which their importance demands.

1. It is contended that there was error in admitting evidence of the value of defendants' property as a reservoir site," and in instructing the jury upon that theory; and the cases of Gilmer v. Lime Point, 19 Cal. 47, and Central Pacific Railroad Company v. Pearson, 35 Cal. 247, are cited. It must be admitted that these cases in some degree sustain the position.

In Gilmer v. Lime Point, the court below refused to allow a witness to be asked what was the value of the property "as a site for a fortification," and, while the judgment was reversed on another ground, the appellate court said that the exclusion of the question was proper. In the other case the lots of one of the defendants bordered on the Sacramento River, and one of the reasons for reversing the judgment was that evidence had been admitted to the effect that "In connection with the Sacramento River she claimed the right to wharf out and erect landings and warehouses." The court referred to this as "wharf privileges," and said that no franchise might ever be granted.

The problem, then, is to ascertain what is the market value. Now where there is an actual demand and current rate of price, there can be but little difficulty. But in many instances (as in the case before us) there is no actual demand or current rate of price-either because there have been no sales of similar property, or because the particular piece is the only thing of its kind in the neighborhood, and no one has been able to use it for the purposes for which it is suitable and for which it may be highly profitable to use it. In such case it has been sometimes said that the property has no market value, in the strict sense of the term. Chicago & N. W. R. Co. v. Chicago & E. R. Co. 112 Ill. 607; Lake Shore & M. S. R. Co. v. Chicago & W. 1. R. Co. 100 Ill. 33; St. Louis, K. & A. R. Co. v. Chapman, 38 Kan. 307.

And in one sense this is true; but it is cer. tain that a corporation could not for that reason appropriate it for nothing. From the necessity of the case the value must be arrived at from the opinions of well informed persons, based upon the purposes for which the prop erty is suitable. This is not taking the "value in use" to the owner as contradistinguished from the market value. What is done is merely to take into consideration the purposes for which the property is suitable as a means of ascertaining what reasonable purchasers would in all probability be willing to give for it, The language of the opinion seems to imply which in a general sense may be said to be the that it had in its mind the value of the privi-market value; and in such an inquiry it is lege as something distinct from the land, and not as an element of the value of the land itself. But in so far as these cases sustain the position of the appellant we think they are in violation of sound principles, and opposed to the overwhelming current of authority.

manifest that the fact that the property has not previously been used for the purposes in ques tion is irrelevant. The current of authority sustains these views.

the property was of insignificant value, but it was found to have a large value for boom purposes. It had never been used for such purposes, but there was nothing to prevent other persons or companies from engaging in the enterprise if they had seen fit to do so. It was held that the value for boom_purposes must govern, and the court, per Field, J. (who, when on the state bench, had concurred in Gil

In Mississippi Boom Company v. Patterson, 98 U. S. 403 [25 L. ed. 206], three islands in The word value is used in different senses. the Mississippi River were sought to be conBouvier, in his definition, says: "This term demned for the purpose of a boom or storing has two different meanings. It sometimes ex-place for floating logs. For general purposes presses the utility of an object, and sometimes the power of purchasing goods with it. The first may be called the value in use; the latter the value in exchange. For the purposes of the law of eminent domain, however, the term has reference to the value in exchange or 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 a careful examin-mer v. Lime Point), said: ation, that such cases either relate to the dam- "In determining the value of land appropri age accruing to the owner from the taking, and ated for public purposes, the same consideranot to the value of the property itself, or over-tions are to be regarded as in a sale of property look the distinction between the two things.

The consensus of the best considered cases is that for the purposes in hand the value to be taken is the market value. Jacksonville & S. E. R. Co. v. Walsh, 106 Ill. 255; Dupuis v. Chicago & N. W. R. Co. 115 Ill. 99, 1 West. Rep. 656;

between private parties. The inquiry in such cases must be, What is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted? That is to say, What is it

worth from its availability for valuable uses? | for railroad purposes, "though at the time Property is not to be deemed worthless because occupied as a farm, was situated in the vicinity the owner allows it to go to waste, or to be of the City of St. Paul and near certain public regarded as valueless because he is unable to institutions," and in view of this it was held put it to any use. Others may be able to use proper to prove its value for suburban resiit and make it subserve the necessities or con-dences. And so in other cases. See Chicago veniences of life. Its capability of being made & E. R. Co. v. Jacobs, 110 Ill. 416; Haslam v. thus available gives it a market value which Galena & S. W. R. Co. 64 Ill. 353; Little Rock can be readily estimated. So many and varied Junction R. Co. v. Woodruff, 49 Ark. 394; Litare the circumstances to be taken into account tle Rock & Ft. S. R. Co. v. McGehee, 41 Ark. in determining the value of property con- 207; Amoskeag Mfg. Co. v. Worcester, 60 N. H. demned for public purposes that it is perhaps 526; Low v. Concord R. Corp. 63 N. H. 558, 2 impossible to formulate a rule to govern its New Eng. Rep. 275; Montana R. Co. v. Warappraisement in all cases. Exceptional circum-ren, 6 Mont. 275; Goodin v. Cincinnati & W. stances will modify the most carefully guarded rule; but as a general thing we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or We think, therefore, that it was proper to such as may be reasonably expected in the im- show the value of the property as a reservoir mediate future." site.' This is not sanctioning a remote or The same rule has been laid down in numer-speculative value. It is merely taking the ous other cases. present value for prospective purposes.

In Harrison v. Young, 9 Ga. 364, 365, a piece of land was sought to be condemned by a bridge company. The trial court refused to admit evidence as to the value of the land "as a bridge site," and restricted the evidence "to the actual value of the land for its agricultural and productive qualities." It was held that this was error, the court, per Lumpkin, J., saying: "Who in making investments of capital in real estate is not influenced by the consideration that it will be valuable for a town, bridge, ferry, mill, manufactory, etc.?"

In Louisville Railroad Company v. Ryan, 64 Miss. 399, the tract condemned was a narrow strip along the Mississippi River. Evidence was admitted to show that it was peculiarly valuable as a mill site, although no mill was then upon it. Upon appeal it was held that the evidence was properly admitted, the court saying: "Clearly, it is of insignificant value for agricultural purposes; and there is neither a wharf, a factory nor a sawmill on it, and there may never be. But if its adaptability to these purposes, or any one of them, gives it a present value, the owner is entitled to that value, though in fact no one now proposes to use it for any of these purposes.'

In Chicago Railroad Company v. Catholic Bishop, 119 Ill. 530, 8 West. Rep. 381, the property sought to be condemned for railroad purposes was a strip in front of a cemetery. For many years it had been rented as a marble yard, and evidence was introduced that it had a special value for restaurant purposes. It was held that this value should be considered, although the bishop would not rent it for such purposes, the court saying:

"Because the proprietor of land elects to use it for one purpose rather than another, we do not think that its capacity for the use to which it is not put is improperly taken into consideration in estimating its value."

In South Park Commissioners v. Dunlevy, 91 Ill. 49, two tracts were sought to be condemned for a public park; and it was held to be proper to prove what the property would be worth if subdivided into lots and blocks.

In Sherman v. St. Paul Railroad Company, 30 Minn. 229, the land sought to be condemned

Canal Co. 18 Ohio St. 181; Chicago & N. W.
R. Co. v. Chicago & E. R. Co. 112 Ill. 608; Re
New York, L. & W. R. Co. 27 Hun, 120; St.
Louis, K. & A. R. Co. v. Chapman, 38 Kan.
307.

2. But it is argued that the value "as a reservoir site" should not have been taken, because there was no practicable site for a dam upon the defendants' property, the only use of which for reservoir purposes being in connection with the land of the plaintiff. But while it might perhaps have been more accurate to say a part of a reservoir site," or for "reservoir purposes," we think this trifling verbal inaccuracy need not be noticed, and that the evidence was properly admitted. While it is true that the defendants' property had no value for reservoir purposes except in connection with the land of the plaintiff, it is equally true that the plaintiff's property had comparatively little value for such purposes except in connection with the land of the defendants; the plaintiff's own evidence being that "With the defendants' land included, the reservoir will hold about six thousand million gallons, and without the land of the defendants it will hold only about one tenth that quantity." And, this being the case, we can see no more reason for saying that the plaintiff can take the defendants' portion without regard to its value for reservoir purposes than for saying that the defendants (if they had happened to commence proceedings first) could take the plaintiff's portion upon the same basis.

The question of value is distinct from the question of ownership. As is well known, the former method of ascertaining the compensation for land taken for railroad purposes was an appraisement by commissioners; and under that system it was held that the commissioners should confine themselves to ascertaining the value, and had nothing to do with the question of ownership or the distribution of the fund. San Francisco & S. J. R. Co. v. Mahoney, 29 Cal. 118.

Under the present system, the compensation is to be determined by a jury, or by the court if a jury be waived. Const. art. 1, § 14.

But this change in the tribunal does not change the nature of the questions to be decided. The question of value is still as distinct in its nature from the question of ownership as formerly. Suppose, for illustration, that the two sides of a cañon suitable for reservoir purposes were owned respectively by two per

sons who are joined as defendants in a pro- | arising from such improvement, under the rule ceeding to condemn the land by a water com- laid down in United States v. Land in Monpany which did not own any of the property. terey County, 47 Cal. 515. It would not be pretended that such compan could take the property at its value for grazing or agricultural purposes (which value might be nominal) merely because it was owned by different persons. Such a proposition would be ridiculous.