prospective increase in value of the lots in National City should be so, too. The reservoir, according to the question, was "sufficient to supply the inhabitants of National City with water"; and good water facilities must be supposed to increase the value of city lots as well as of country land; so that if the defendants are entitled to the prospective increase in the one case, they are in the other. It seems clear, however, that such an increase in value is too remote and speculative to be considered. We have not overlooked the fact that it appears from the plaintiff's own evidence that the value of the surrounding land would be increased in value at least fifty per cent by having irrigation facilities afforded to it. But this does not help the respondents' case in this regard. For, in the first place, the record does not show that the plaintiff put in this evidence as bearing upon the issue as to value. It may have been put in upon the question of the necessity for the taking, while in the question above quoted it is expressly put as an element of the value. And in the second place, the introduction of irrelevant evidence upon one side without objection does not justify the introduction of irrelevant evidence upon the other side. (Donelly v. Curran, 54 Cal. 282.)

It is to be observed that the question before us relates to the value of the land taken, and not to the damage to the remaining portion, which was not included in the motion for new trial. Whether the same rules would apply to the latter case is not a question which we need consider.

4. Upon the trial, witnesses who had more or less knowledge of surroundings and of values, but who could not be said to be experts in the strict sense of the term, were allowed to testify concerning the value of the land. We think that this was proper. While it is true that the witnesses were not experts in the strict sense of the term, and that their opinions as to the value cannot in strictness be said to be a fact, yet it seems to be settled that

from the necessity of the case the general rules of evidence suffer an exception in this particular. The principle upon which this rests was laid down in People v. Sanford, 43 Cal. 32, 33. In that case a person who was not an expert, but who had seen the deceased at a particular time, was allowed to state what appeared to be his condition of mind. This was held to be proper, and the court, per Wallace, C. J. (adopting the language of a North Carolina case), said: "It approaches to knowledge, and is knowledge so far as the imperfection of human nature will permit knowledge of these things to be acquired; and the result thus acquired should be communicated to the jury because they have not had the opportunities of personal observation, and because in no other way can they effectually have the benefit of the knowledge gained by the observations of others." In the subsequent case of People v. Monteith, 73 Cal. 7, it was held, upon the authority of the preceding case, that a witness who was not an expert could be allowed to state what was the condition of the defendant as to sobriety on a certain occasion. In other states the principle of these cases has been applied to questions as to the value of property both in proceedings in eminent domain and in other cases. In Shattuck v. Stoneham R. R., 6 Allen, 117, persons who were familiar with the neighborhood were allowed to give their opinions as to the value of land taken in eminent domain, and this was held to be proper, the court, per Chapman, J., saying: "This is permitted as an exception to the general rule, and not strictly on the ground that such persons are experts; for such an application of that term would greatly extend its signification. The persons who testify are not supposed to have science or skill superior to that of the jurors; they have merely a knowledge of the particular facts of the case, which jurors have not. And as value rests merely in opinion, this exception to the general rule that witnesses must be confined to facts, and cannot give opinions, is founded in necessity and

obvious propriety." So in Robertson v. Knapp, 35 N. Y. 92, upon a question as to the value of a farm, farmers and residents of the neighborhood were allowed to give their opinions as to the value, and the court, per Leonard, J., said: "In general, the opinion of the witness is not evidence, but there are exceptions to the rule. The exceptions generally proceed upon the principle that the question is one of science or skill, or has reference to some subject upon which the jury are supposed to have less knowledge than the witness. The case of the value of property forms one of the admitted exceptions." A similar ruling was made in Penn. & N. Y. R. R. Co. v. Bunnell, 81 Pa. St. 426, in which case, Sharswood, J., delivering the opinion, said: "The market value of land is not a question of science and skill, upon which only an expert can give an opinion. Persons living in the neighborhood may be presumed to have a sufficient knowledge of the market value of property with the location and character of the land in question. Whether their opinion has any proper ground to rest upon, or is mere conjecture, can be brought out upon cross-examination. Such opinions have always been received." A similar ruling was made in Le Roy & W. R. R. Co. v. Hawk, 39 Kan. 638, in which case, Johnston, J., delivering the opinion of the supreme court of Kansas, said: "This is not a question of science or skill, requiring expert testimony, but it falls within one of the exceptions to the rule excluding mere opinions of ordinary witnesses. It is not necessary that the witnesses shall be engaged in buying and selling land, nor that they should have knowledge of an actual sale of that or similar land to make them competent. A farmer living in the vicinity is presumed to be familiar with and to know the value of farm lands, and there can be no doubt of his competency when it is shown that he knows the situation and character of the land, its productiveness and availability for use, and who further states that he knows the value of the same." And so in

other cases. (See St. Louis R. R. v. Chapman, 38 Kan. 307; Leavenworth R. R. v. Paul, 28 Kan. 821; Colville v. St. Paul R. R. Co., 19 Minn. 285; Springfield R. R. v. Calkins, 90 Mo. 543; Vandine v. Burpee, 13 Met. 291; Swan v. Middlesex, 101 Mass. 177; Frankfort & K. R. R. Co. v. Windsor, 51 Ind. 238.)

Upon the principle of these cases we think that the

evidence was admissible.

In addition to the appeal from the order denying a new trial, there is in the transcript a notice of appeal from the judgment. But none of the counsel have suggested that the points made arise upon that appeal, or advanced any reason why the judgment should be reversed thereon. Following the lead of counsel we have assumed that there is no error which can be considered upon that appeal.

We therefore advise that the judgment be affirmed as to all the issues except the issue as to the value of the land taken, and that the judgment as to that issue, and the order denying a new trial, be reversed, and the cause remanded for a new trial of said issue, the appellant to recover its costs of appeal.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment as to all the issues, except the issue as to the value of the land taken, is affirmed; the judgment as to that issue, and the order denying a new trial, are reversed, and the cause remanded for a new trial of said issue, the appellant to recover its costs of appeal.

MCFARLAND, J., concurring.-I concur in the judg ment, but I dissent from so much of the opinion of Mr. Commissioner Hayne as holds that there was no error in admitting evidence of the value of defendant's land as a "reservoir site," and in instructing the jury upon

that theory. That would be, practically, to allow defendant to recover for an enhancement of the value of his land brought about by the very act of taking it. The rule stated in Gilmer v. Lime Point, 19 Cal. 47, and Central P. R. R. Co. v. Pearson, 35 Cal. 247, applies here, and I see no good reason for overruling those cases.

SEARLS, C. J., concurring.-I concur in the judgment and in the views expressed by McFarland, J.

WORKS, J., did not participate in the decision of this

cause.

[No. 12810. In Bank.-December 31, 1888.]

SAN DIEGO LAND AND TOWN COMPANY, APPELLANT, v. GEORGE NEALE ET AL., RESPONDENTS.

EMINENT DOMAIN-NON-PAYMENT OF AMOUNT AWARDED TO DEFENDANT -REMOVAL OF PLAINTIFF FROM POSSESSION-REMEDY.-Where, pending proceedings in eminent domain, the plaintiff takes possession of the property, but not under color of the authority of such proceedings, and does not pay the amount awarded to the defendant, but takes proceedings to have the judgment reviewed, the defendant, if he wishes to have the plaintiff removed from possession, must resort to his remedy by action, and cannot have the plaintiff removed upon motion made on affidavits, unless the statute gives such a remedy. ID. The statute makes no provision for a summary remedy in such a If the possession was taken under color of the proceedings, and the plaintiff does not pay the amount awarded to the defendant, the court may remove plaintiff from possession upon motion, but there must be a showing that execution has been issued, and that the money cannot be made on the execution.

case.

APPEAL from an order of the Superior Court of San Diego County made after final judgment.

The facts are stated in the opinion, and in the opinion in the preceding case of San Diego Land and Town Company v. Neale, ante, p. 63.