him off at any place or time afterwards when his behavior rendered it legal and necessary. And if the deceased, for whose drunken state the company was in no way responsible, acted so as to justify and require his expulsion, it would be a harsh rule to make the company liable, if not otherwise so, merely because the conductor did not assume the risk and responsibility of deciding, even if aware of the fact, that he was too much intoxicated to be allowed to go on the train at Lebanon. Then, regarding the deceased as upon the train by his own volition, which the conductor did not, nor was bound to oppose, the main question is whether the will ful neglect of appellant, or its servants in charge of it, to perform any duty it owed to, him, was the proximate cause of his death.

train to stop, especially as the locality was not unsafe.

The question then arises whether, notwithstanding bis continued presence on the train was so offensive and dangerous both to the conductor and other passengers as to justify and require his expulsion, the paramount duty was imposed upon the company, by reason of the mental and physical condition of the deceased, to carry him to the next station, the nonperformance of which is, in legal contemplation, willful neglect. It was not enough for the jury in this case to find he was too intoxicated to take care of himself; but to constitute willful neglect, even if the company was under obligation to look after his safety after he had forfeited his right as passenger, it was necesThe law makes it the duty of a railroad com- sary that the conductor knew or had reasonable pany to use all reasonable care in operating grounds to believe, not, in the language of one trains for both the safety and protection from of the instructions of the lower court, that to molestation and insult of passengers; otherwise put him off the train "would necessarily exorderly and infirm persons and females, who, pose him to the danger of death from being upon the faith of such protection, frequently run over by passing trains," but that such travel unattended, would have no security would be the natural and probable result of against turbulent, bad men. And as it is ob- putting him off. If his actions while on the vious a train must be run with skill and sys-train-by which alone the conductor could or tem in order to assure safety and comfort, the conduct of anyone who interferes with the management, or without just cause attempts to do bodily injury to, or put in fear, those in charge, is reprehensible and unlawful.

was required to judge-be taken as evidence of what his actual condition was, he not only had the power of locomotion, as shown by his passing with entire safety to and fro between the cars while the train was in motion, but But a railroad company is not required to knew well how to do mischief to others, and keep at hand armed police to arrest and confine was at the same time extremely sensitive of inon a moving train those who violate its neces- jury to himself; and it seems to us, in the light sary rules, or do injury to other passengers; of the undisputed facts of the case, unreasonnor can the employés neglect their duties, upon able to charge the company with negligence of the faithful performance of which the safety any degree in expelling him from the train at of all depends, in order to do so. Consequently, the time and place it was done. But, as it is the only effectual remedy for or security against proper, we will consider the relation and mutdisorderly and lawless behavior on board a pas-ual obligations existing between him and the senger train is the immediate and summary company as though it was an open question of expulsion of the wrong doer; and plenary au- fact whether the conductor knew or had reathority of the conductor to do it is universally sonable grounds to believe he was too intoxirecognized, and required to be exercised when-cated to take care of himself. ever necessary for the safety or protection of either passengers or employés.

It is well settled by this court, and the certain and just execution of the law and welfare It is clear from the evidence in this case the of society require it to be settled, that voluntary conduct of the deceased was such as to justify drunkenness affords no excuse for the commishis expulsion, for he not only with a hostile sion of crime, nor is it a valid defense to an purpose left his proper place and pursued the action for a civil injury; for in every situation conductor into the ladies' car, where he dis- and relation an intoxicated person, like others, turbed, alarmed and offended the passengers, should be held to the strict observance of the but, baffled in an effort to enter it a second time just and statutory rule which requires each one with the same intent, he wantonly and slyly to so use and enjoy his own as not to injure pulled the bell rope, whereby the train was others. It thus becomes lawful for a landlord stopped between stations. Moreover, his be- to expel from his tavern to the street or highhavior to the conductor was without provoca- way, at any time, a person who, whether intion, and such as to afford to him reasonable toxicated or not, endangers the safety, or grounds to believe he was in danger of bodily molests and insults his guests, and no one harm, if not of losing his life. In fact, the would question the right of a housekeeper to gravamen of the action as stated in the petition eject from his domicil a drunken man who is not based upon the lack of legal cause for maltreats or offends by indecent conduct or the expulsion, but rather upon the circum-language his wife and children, provided no stances of time, place and manner in which it was done, in view of the alleged physical and mental condition of the deceased. Though the time was at night, it was not too dark to see the railroad track distinctly, nor was the weather either cold or inclement; while it would in fairness seem no more than retributive justice that he was put off at the place his own malicious and unlawful act caused the

more force be used in either case than was reasonably necessary.

Such being a rule of conduct recognized as just and necessary, we do not see why it ought not to be applied, upon the same condition, for the benefit and protection of passengers on a railroad train, nor why they should be given the right to maintain an action against a railroad company for suffering them to be molested,

put in fear, and insulted on a train by drunken men, while denying the company the right, except at its peril, to resort to the only feasible means in its power to prevent or stop the wrong being done. Common justice would seem to require either that passengers be left without redress against the company for wrong and injury done to them on trains by disorderly and vicious persons, or else that no liability attach, or negligence be imputed, to the company when the expulsion of the latter is rendered necessary for the safety and protection of the former.

sity, a passenger so drunk as to be helpless when his death would naturally and probably result from agencies other than his own act, then present and impending, the law does not exact care and precaution against the death of one from remote causes, or self inflicted, whose conduct has afforded legal grounds for his expulsion.

The case of Louisville Railroad Company v. Sullivan, 81 Ky. 624, is unlike this. There the only violation of the rules of the company was the failure by reason of inability to pay the fare, which was twenty cents. Here the deceased was able to pay, but not only threatened violence because he was asked to pay, but compelled the conductor to resort to force to get it. There the delinquent was neither turbulent nor offensive to passengers or emand alarmed the passengers, but threatened personal violence to the conductor, and imperiled the safety of all on board, by causing the train to stop. In that case Sullivan was inhumanly put off in a deep snow, the weather being intensely cold, and on account of bis helpless condition, which the conductor knew of, was unable to escape the injury that was at the time manifestly inevitable. In this case the deceased was killed by his own act in going upon the track, which the conductor had no reason to believe, from his mental and physical condition, as it appeared to him, was probable.

Thus the issue in every such case as this is really between the orderly, infirm and females on the one side and the turbulent and evil disposed on the other; and the company has the right to terminate the relation of carrier and passenger between it and the latter class when-ployés. Here the deceased not only insulted ever and wherever they lawlessly put in fear, disturb or insult the former. And in our opinion, if the deceased went into the ladies' car, and there by his violence and indecent behavior or language excited, alarmed or insulted the other passengers, or if he interfered with the management of the train by pulling the bell rope or otherwise, or if he threatened with an open knife to take the life of or do bodily harm to the conductor, or attempted to deter or intimidate him while in the performance of his duties, the right existed to put him off the train at the place it was done, and all that was required of the company was to use no more force than reasonably necessary for the purpose, and to place him off the track, out of the way of that train; for although there might be a case where a railroad company would be guilty of willful neglect in the meaning of the statute by ejecting, without imperative neces

As the lower court refused to give any instruction according with the views here expressed, but instead gave three which are either abstract or erroneous and misleading, the judgment is reversed, and cause remanded for a new trial consistent with this opinion.

CALIFORNIA SUPREME COURT.

SAN DIEGO LAND & TOWN CO., Appt.,

v.

George NEALE et al., Respts.

(.... Cal.....)

1. A new trial may be had as to a part of the issues in a case, under the California Code NOTE.-Condemnation proceeding; evidence of value of land taken.

This value of the land is said to be determined by the jury, from the evidence, either as furnished by the testimony of witnesses or by their personal inspection of the premises; and in so far as its adaptability to uses other than that to which it is applied, enhances or fixes its present market value, such uses are competent to be considered by the jury. Haslam v. Galena & S. W. R. Co. 64 Ill. 353; Chicago & E. R. Co. v. Jacobs, 110 Ill. 414; Jacksonville & S. E. R. Co. v. Walsh, 106 Ill. 253; Dupuis v. Chicago & N. W. R. Co. 1 West. Rep. 656, 115 Ill. 98; Calumet River R. Co. v. Moore (Ill.) 13 West. Rep. 506; Reed v. Ohio & M. R. Co. (Ill.) 15 West. Rep. 191. Value rests merely in opinion; hence, persons acquainted with the value of the property may state their opinions as to the value and the amount of damages, and such persons are not necessarily experts. Shattuck v. Stoneham Branch] R. Co. 6 Allen, 115; Swan v. Middlesex Co. 101 Mass. 173; Whitman v. Boston & M. R. Co. 7 Allen, 313; Wy

of Civil Procedure, which neither expressly forbids nor authorizes such a course, but defines a new trial as a "re-examination of an issue of fact."

2. The market value of land taken in condemnation proceedings is the amount of damages to which the owner is entitled.

3. Although property may have no marman v. Lexington & W. C. R. Co. 13 Met. 316; West Newbury v. Chase, 5 Gray, 421; Walker v. Boston, 8 Cush. 279; Indianapolis, D. & S. R. Co. v. Pugh, 85 Ind. 279; Mills, Em. Dom. § 168.

Any evidence is competent and any fact is proper to be considered which legitimately bears upon the question of the marketable value of the property. King v. Minneapolis Union R. Co. 32 Minn. 224.

If lands were valuable by reason of their location on or near a river, for the purposes of operating a sawmill or factory, or any other purpose, testimony to prove the same was proper for the consideration of the jury in determining the fair market value of the premises. Dupuis v. Chicago & N. W. R. Co. 1 West. Rep. 656, 115 Ill. 97; Jacksonville & S. E. R. Co. v. Walsh, 106 Ill. 253; Washburn v. Milwaukee & L. W. R. Co. 59 Wis. 369; Calumet River R. Co. v. Moore (Ill.) 13 West. Rep. 507. See Le Roy & W. R. Co. v. Packer, ante, 217.

Market value of land considered.
Where the lands proposed to be taken under the
Eminent Domain Law have a market value, the

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

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 N. H. the Sweetwater River, and before the com- 558, 2 New Eng. Rep. 275; Searle v. Lackamencement 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 sufficient 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 language of the opinion seems to imply that it had in its mind the value of the privilege 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.

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 certain 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 property 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, which in a general sense may be said to be the market value; and in such an inquiry it is manifest that the fact that the property has not previously been used for the purposes in question 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 damage accruing to the owner from the taking, and not to the value of the property itself, or overlook the distinction between the two things.

Tae 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;

"In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property 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