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 new trial as to a part of the issues was permissible. (Lake v. Bender, 18 Nev. 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 there

fore 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 Valley, and of the right. to divert the waters of the Sweetwater River, and, before the commencement of the proceedings, had commenced to build a dam upon its own land. The defendants were the owners of a tract above the dam. There was no

practicable site for a dam upon defendants' land, either on the part sought to be condemned, or on the remainder of the tract. But it was shown that the water collected by the plaintiff's dam would back up and flood a portion of their tract; and this is the 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 reser

voir site," and in instructing the jury upon that theory; and the cases of Gilmer v. Lime Point, 19 Cal. 47, and Central P. R. R. Co. 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, in substance, that the right to erect a wharf was something to which the owner had not a right, unless a franchise therefor were granted by the state, and 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 word "value" is used in different senses. Bouvier, in his definition, says: "This term has two different meanings. It sometimes expresses 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 examination, 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. 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. R. v. Walsh, 106 Ill. 255; Dupuis v. C. & N. W. R'y, 115 Ill. 99; Little Rock J. R'y v. Woodruff, 49 Ark. 388; Low v. R. R. Co., 63 N. H. 558; Searle v. Lackawanna R. R. 33 Pa. St. 57; Arcata etc. R. R. Co. v. Murphy, 71 Cal. 122; and see Cooley's Constitutional Limitations, 565; 2 Dillon on Municipal Corporations, sec. 487), by which is undoubtedly meant, not what the owner could realize at a forced sale, but "the price that 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. R'y v. Woodruff, 49 Ark. 390.) 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'y v. C. & E. R. R., 112 Ill. 607; Lake S. & M. S. R'y v. C. & W. J. R. R., 100 Ill. 33; St. Louis R. R. v. Chapman, 38 Kan. 307.) And in one sense this is true. 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 wellinformed 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.

But

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.

In the Boom Co. v. Patterson, 98 U. S. 403, three islands in the Mississippi River were sought to be condemned for the purpose of a boom or storing-place for floating logs. For general purposes 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 Gilmer v. Lime Point), said: "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 it is worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to use it and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated. So many and so varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it

is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances 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 such as may be reasonably expected in the immediate future."

The same rule has been laid down in numerous other cases. 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 an 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 R. R. Co. 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, or a saw-mill on it, and there may never be. But if its adaptability for 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 R. R. Co. v. The Catholic Bishop, 119 Ill. 530, 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. Evidence

was introduced that it had a special value for restaurant purposes. It was held that this value should be con