such railroad company, the court may strike out such allegations in the answer; the question sought to be raised by such allegations is one going to the public character of the use and necessity for its establishment, and as such is properly solvable by the city council only. [City of Santa Ana v. Harlin, No. 19,030, decided September 13, 1893.] So also, the mere fact that individuals have subscribed money or given a bond to the city to contribute toward the expense of laying out a street will not vitiate the proceedings, or prove that the land was taken for the accommodation of private persons, and not for public use. [Id.]

In this case of City of Santa Ana v. Harlin, Mr. Commissioner Searls, said: "Under the act of March 6, 1889, statutes of 1889, page 70, the power to order the opening of streets in municipalities, and the method of its exercise, is conferred upon the city council or legislative department of the municipality. Provision is made whereby those interested and objecting to the improvement and to various of the measures for carrying it out may be heard and their objections passed upon by the council, and when the several steps provided by the statute have been taken and the resolution and ordinance ordering said work have been regularly adopted, the action of the council is final and conclusive of the necessity of the improvement, and the courts may not adjudicate the question of such necessity in an action or proceeding for condemnation of lands necessary to the improvement. [See section 18 of statutes of 1889, p. 75; Tehama Co. v. Bryan, 68 Cal. 57; Butte Co. v. Boydston (not reported), 11 Pac. Rep. 781; San Francisco v. Kiernan et al., vol. 5, Cal., Dec., p. 207.] There is no doubt that in many instances of attempted taking of private property for public uses it devolves upon the courts to determine whether or not the use is a public use. [Con. Channel Co. v. C. P. R. R. Co., 61 Cal. 269; Varick v. Smith, 5 Paige Ch. 159; Loan Assn. v. City of Topeka, 20 Wall, 655.] These, however, are exceptions to a general rule which recognizes in the legislative department the source of the power to determine what shall be held to be a public use, and the action of the legislature on the question is not, except in extreme cases, open to review by the courts. [Napa Valley R. R. Co. v. Napa County, 30 Cal. 437.] That the use of land for public streets in an incorporated town is a public use is true beyond controversy. And, when, as under the statute of March 6, 1889, the duty of determining the necessity of opening such streets and where as under that statute the official declaration or order opening a street is made conclusive evidence of the necessity

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therefor, the field of inquiry, in proceedings for the condemnation of land for such purposes, is confined to comparatively narrow limits."

In this case of Santa Ana v. Harlin, it was, in effect, stated by the learned commissioner who wrote the opinion, that if the defendant, in an action under section 18 of the act to condemn, desires to defend upon the ground of any defect or irregularities in the proceedings, he must allege such defect or irregularities. In this connection the learned commissioner said:

"The answer contains no allegations of any defect or irregularity in the proceedings, and hence there was no issue under which such evidence was admissible. The case of Los Angeles County v. San Jose Land Co., 96 Cal. 93, involved a like principle with that urged by appellant here, although under a different statute."

In an action under section 18 of the act to condemn, the present market value of the land, is the measure of damages and not its use to the owner or to the parties seeking to condemn it. [City of Santa Ana v. Harlin, supra. ] It cannot, for the purpose of proving the market value, be shown for what general purposes the land might be properly used, as it might be used for a great variety of purposes, but such fact would not enlighten the jury upon the question of its value. It may, however, be shown whether or not the land is adapted to and peculiarly suited for some specific purpose, as that, by reason of its location, or its characteristics or qualities, it is peculiarly suited for a court house, or for a college or school. The witnesses are not allowed to give their opinions as to the value of the property for a particular purpose, but they may state its market value in view of any purpose to which it is adapted. [Id.] As a general rule it is not competent for the owner to prove what he has been offered for his property, or what persons who have been looking for similar property were willing to give for it. Or, if such questions are allowed, the testimony as to such offers must be confined to a period near the time at which the value was to be ascertained. [Id.] Upon cross-examination, however, where great latitude is allowed for the purpose of testing witnesses, questions of this character are allowable. [Id.] In respect to these rules of evidence in such condemnation suits, Mr. Commissioner Searls, in said case of City of Santa Ana v. Harlin, said:

"The next error assigned relates to the exclusion of evidence offered by defendant to show the uses and purposes to which the land proposed to be taken could properly be applied. In proceedings for the condemnation of land, the

. 18 of Act

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present market value of the land is the measure of damages. and not its value in use to the owner or to the parties seeking to condemn it. By the term 'present market value' is meant not what the owner could realize at a forced sale, but 'the price he could obtain after reasonable and ample time, such as would ordinarily be taken by an owner to make sale of like property.' [Little Rock J. Ry. v. Woodruff, 49 Ark. 390.]

"In the Boom Co. v. Patterson, 98 U. S. 403, it was said: 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 it is worth from its availability for valuable uses?' Again the court says: '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 such as may be reasonably expected in the immediate future.'

"The peculiar fitness of land for particular purposes is an element in estimating its value which may be shown, and when it appears, forms a factor in solving the problem of market value. [San Diego Land, etc. Co. v. Neale, 78 Cal. 63 and 88 Cal. 50; Drinkhouse v. S. V. W. W., 92 Cal. 528.]

"One of the questions ruled as inadmissible was the following: For what purpose could that property be used properly?' No doubt the land in question could be properly used for a great variety of purposes, but it is not perceived that such fact would enlighten a jury upon the question of its value. Whether or not it was adapted to and peculiarly suited for some specific purpose is quite a different proposition, and testimony was introduced in reference to its qualities, location, surroundings, etc., all of which was proper. The following question was asked by defendant: What are the characteristics or qualities of the land, Mr. Palmer, that renders it suitable for a court house?' Similar questions tending to draw out testimony showing the adaptation of the land for a college, and for the purpose of a school, etc., were put and ruled out on the objection of plaintiff, and the rulings are assigned as error.

"I am of opinion the court erred in some of these rulings. The rule as enunciated by Lewis on Eminent Domain, at section 479 is as follows: The conclusion from the authorities and reason of the matter seems to be that witnesses should not be allowed to give their opinions as to

the value of property for a particular purpose, but should state its market value in view of any purpose to which it is adapted. The condition of the property and all its surroundings may be shown, and its availability for any particular use. If it has a peculiar adaption for certain uses, this may be shown; and if such peculiar adaptation adds to its value the owner is entitled to the benefit of it. But when all the facts and circumstances have been shown, the question at last is, what is it worth in the market?'

"It will be seen from the foregoing quotation, which is regarded as a correct exposition of the law on the subject, that as to some of the questions seeking to elicit the value of the property for a specific purpose, the rulings of the court below were correct. It should, however, it is thought, have permitted a full and free investigation as to the adaptbility of the land to the varied practical purpose to which it is naturally adapted. [Central Pacific R, R. Co. v. Pearson, 35 Cal. 247.] Such proof should be limited to showing the present condition of the property and the uses to which it is adapted, and may not be extended to speculative inquiries as to possible future uses under altered circumstances, which may or may not arise.

"There was no error in the ruling of the court excluding an answer to the following question propounded to defendant when testifying as a witness in his own behalf: 'Question. Have you ever received offers for this real estate property? The witness had just testified that he owned the land described in the pleadings, and had resided there sixteen years. The question as to whether he had received offers for the property was in effect to ask him if he had received such offers at any time in sixteen years. The general rule in estimating the market value of property is that 'it is not competent for the owner to prove what he has been offered for his property [C. P. R. R. Co. v. Pearson, 35 Cal. 247], or what persons who have been looking for similar property were willing to give for it.' [Selma R. R. Co. v. Keith, 53 Ga. 178; Lewis on Eminent Domain, § 446; see, also, Drinkhouse v. S. V. W. Wks., 92 Cal. 528.] A case apparently at variance with the general line of decisions is to be found in Muller v. Railway Co., 83 Cal. 240, in which the court held a similar question admissible, saying: 'Bona fide offers for property afford some test as to its value, and are, we think, admissible,' quoting Harrison v. Glover, 72 N. Y. 451. The case quoted was not in relation to the market price of land, but related to a subject so different as to lend no support to the case there under discussion. If the doctrine of Muller v. Railway Co. can

. 19 and 20

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be upheld, it must be only as an exception to a general rule applicable only in peculiar cases, of which the present is not one.

"Again, if the binding force of Muller v. Railway Co. be admitted, the question put to defendant was improper in not confining the witness to a period near the time at which the value was to be ascertained.

"Upon cross-examination, where great latitude is allowed for the purpose of testing witnesses, questions of this character are conceded on all hands to be allowable. The questions put upon cross-examination of defendant's witnesses and objected to were proper. Great liberality is properly extended in such cross-examinations, and for the purpose of testing the knowledge, judgment or bias of the witness, the liberality is wisely exercised. In such cases, and for such purposes, much must be left to the discretion. of the trial court and it is only for an abuse of discretion that its action should be impugned. The witnesses, Pinther, Ames and Blee, should have been allowed to testify as to the market value of the property. They were not experts in the severe sense of the term but showed such knowledge and experience as to values of land in that neighborhood as entitled the defendant to their opinions. [Penn. & N. Y. R. R. Co. v. Bunnell, 81 Pa. St. 426; Robertson v. Knapp, 35 N. Y. 92; LeRoy & W. R. R. Co. v. Hawk, 39 Kan. 638; Shattuck v. Stoneham R. R. Co., 6 Allen, Mass. 117; People v. Sanford, 43 Cal. 32; San Diego Land, etc. v. Neale, 78 Cal. 77."]

SECTION 19. The treasurer shall pay such warrants out of the appropriate fund, and not otherwise, in the order of their presentation; provided, that warrants for land or improvements taken or damaged shall have priority over warrants for charges and expenses, and the treasurer shall see that sufficient money is and remains in the fund to pay all warrants of the first class before paying any of the second. [Statutes 1889, page 76.]

SECTION 20. If after the sale of the property for delinquent assessments there should be a deficiency, and there should be unreasonable delay in collecting the same, or if for the purpose of equalizing the assessments, supplying a deficiency, or for any cause it appears desirable, the commissioners may so report to the city council, who may order them to make a supplementary assessment and report the same in manner and form as the original, and subject to the same procedure. If by reason of such supplementary assessment, or for any cause, there should be at any time a surplus, the city council may appropriate the same and declare a dividend pro rata to the parties paying the same, and they, upon demand, shall have the right to have the amount of such pro rata dividends refunded to them, or credited upon any subsequent assessment for taxes made against said parties in favor of said city. [Statutes 1889, page 76.]