Spring Valley Water Works v. Drinkhouse

De Haven, J.

The respondent is a corporation organized under the laws of this state for the purpose of supplying the city and county of San Francisco and its inhabitants with water, and is engaged in that business. This action is brought to condemn certain land of the defendant as part of a reservoir site, and which is alleged by the plaintiff to be necessary for it in the prosecution of the said business for which plaintiff was created. The answer of defendant, among other things, denies that such intended use of the land sought to be taken is a public use, or that the same was necessary for the purpose of enabling plaintiff to effect the purpose for which it was created.

1. It was held by this court in the case of Lake Pleasanton Water Co. v. Contra Costa Water Co., 67 Cal. 659, in construing sections 1238 and 1239 of the Code of Civil Procedure, that the power of eminent domain extended to the taking of land for such purposes as are named in the complaint in this action. We there said: “The supplying of inhabitants of an incorporated city with pure, fresh water is, by section 1238, declared to be a public use, in behalf of which the right of eminent domain may be exercised, and section 1239 provides, in effect, that the entire estate in a given piece of land may be taken, when needed for a reservoir, in behalf of such use.” We have no doubt of the correctness of this conclusion, and therefore hold that the purpose for which plaintiff alleges that it desires to acquire the appellant’s land by this proceeding is a public use, and consequently one in behalf of which the power of eminent domain may be exercised.

2. There is no doubt of the proposition, that before land can be taken for a public use it must appear that the taking is necessary for such use. This is a question of fact to be determined by the court or jury in view of all the evidence in the case, and the burden of proof is upon the plaintiff. The evidence must be sufficient to show that the land is reasonably required for the purpose of effecting the object or carrying on the business for which the plaintiff was organized, and in this case not only the present demands of the public upon the plaintiff, hut those which may be fairly anticipated on account of the future growth of the city, are to be considered. We think the evidence was sufficient to show a necessity for the taking of defendant’s land within the meaning of the law, and we cannot disturb the finding of the court below on that point.

3. The court did not err in sustaining objections to the questions asked the witness Howard, as to how much the plaintiff had paid per acre for the Sherwood and Howard tracts, or as to offers made by plaintiff to purchase these tracts. Howard was a witness for defendant, and these questions were asked by defendant in the examination in chief of the witness. However the rule may be in other states, it is settled here that such facts are not admissible as evidence in chief, but only by way of cross-examination for the purpose of testing the fairness or honesty of an opinion which the witness may have given upon his direct examination in relation to the value of the property involved in the action. (Central Pacific R. R. Co. v. Pearson, 35 Cal. 262.)

4. The witness Howard was also asked the following questions: “ Do you know what the value of that land is down there for reservoir purposes? Have you any means of knowing the value of this land for reservoir purposes?”

The questions were objected to by plaintiff as irrelevant and incompetent. The objections were sustained. The witness was the president of the plaintiff corporation, and the objections made to these questions do not proceed upon the ground that the witness was not competent to answer them, or that the proper foundation had not been laid by proof that in point of fact the land did have, by reason of its situation and surroundings, an added, distinctive value for reservoir purposes. The question is thus presented -whether, assuming that the land sought to be taken was specially valuable for the purpose named, it was relevant and competent to show such value. There is undoubtedly some conflict in the authorities as to the admissibility of questions put in this form, but we think the point was decided in favor of the admissibility of such evidence, in the case of San Diego Land etc. Co. v. Neale, 78 Cal. 63, and in the same case on a second appeal to this court. (88 Cal. 50.) Nor would this rule, as supposed by respondent, justify the admission of speculative opinions based upon the necessities of the plaintiff, or what the plaintiff could afford to give for the land rather than to do without it. If it should appear, during the course of the examination, that a witness had given an opinion as to value formed upon any such considerations, it would be the duty of the court to strike such opinion evidence out as resting upon an illegal and improper basis. The rule is, that the owner is entitled to the market value of his land, to be determined in view of all the facts which would naturally affect its value in the minds of purchasers generally, which necessarily makes it proper to consider for What purpose it is most valuable. “ Any existing facts which enter into the value of the land in the public and general estimation, and tending to influence the minds of sellers and buyers, may be considered.” (Russell v. St. Paul etc. R. R. Co., 33 Minn. 213.) If, therefore, the land sought to be condemned in this action by reason of its situation, and because it is part of a basin adapted for reservoir purposes, would be regarded as more valuable by purchasers generally than if it did not possess such advantages of location and adaptability for use as a reservoir, the plaintiff should be permitted to show its value with reference to such facts, by the testimony of competent witnesses; and as said in San Diego Land etc. Co. v. Neale, 78 Cal. 69, this is not in reality any departure from the rule which requires the evidence of value to be confined to what the property is worth in the market, having regard to the most valuable use to which it may be devoted. The court there said: “ 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.”

5. The defendant, Mrs. Drinkhouse, was a witness in her own behalf, and after testifying that she had owned the land sought to be taken for over twenty years, and was using it for a summer residence for herself and family, she was asked:—

“Q. Do you know the value of this land? A. I know what the water company has paid other people.

“Q,. Do you know the value of this land of yours? A. What do you consider value?

“Q. Answer, yes or no. A. I think I do.

; “Q. What is its value?”

An objection was made to this last question, upon the ground that no foundation had been laid for it, which was sustained. This was error. All that is necessary to be shown to entitle a witness to give an opinion is to show “ that he has some peculiar means of- forming an intelligent and correct judgment as to the value of the property in question, or the effect of a particular improvement, beyond what is presumed to be possessed by men generally.” (Lewis on Eminent Domain, sec. 437.) In this connection the same author says: “ These peculiar means may consist in .... a long acquaintance with the particular property and the neighborhood where it is situated, accompanied with the occupation or ownership of siznilar property, and especially if accompanied with a knowledge of sales of similar property.” We think the witness was competent to give an opinion as to the value of her own land, within the general rule on that subject. She had a particular knowledge of it, being a resident upon it, and had owned it for over twenty years. The natural presumption would be that she had, during that long period, acquired sufficient acquaintance with it, and of the value of the land in that neighborhood, to be able to give an intelligent estimate as to the value of her own property. (Burlington etc. R. R. Co. v. Schluntz, 14 Neb. 423; Lehmicke v. St. Paul etc. R. R. Co., 19 Minn. 464. See also Walker v. City of Boston, 8 Cush. 279; Pierce on Railroads, 227.) In the first case cited, the court, in passing upon the competency of the owner of the land to testify to its value, said: “He swore explicitly that he knew its value, and from the fact that he had lived there for twelve years, had made the improvements upon it, and appears to have possessed ordinary intelligence at least, I am satisfied he was qualified to give his opinion on that poizit.” The witness should have been permitted to testify to the value of the property. It may be that a cross-examination would have shown that such opinion was entited to but little weight, but that does not affect the question of its admissibility.

We find no errors in the record other than those we have pointed out, and these do not require a retrial of any of the issues except those relating" to the value of the land sought to be taken, and the damage to the reznaining portion of defendant’s land not taken.

Judgment and order reversed, with directions to the court below to retry the issues as to the value of the land sought to be taken, and the damage to the remaining portion of the land not taken, and thereupon to enter judgment in accordance with the prayer of the complaint, and in favor of the defendant, for such value and damage and costs.

Paterson, J., Beatty, C.. J., and Garoutte, J., concurred.