Vallejo & Northern R.R. v. Reed Orchard Co.

This is an action to condemn for public use certain real property belonging to the Reed Orchard Company. S. Komano, a lessee of parts of the land, and People’s

The verdict was rendered on March 22, 1912. The record shows that on the following day, March 23d, a judgment was entered by the clerk, reciting the verdicts in full and adjudging that the plaintiff “do have judgment, condemning for the uses of said plaintiff as specified” in the complaint, a certain parcel of land described, and that the defendants recover of the plaintiff the sum of $104,100, being the value of the parcel of land as fixed by the verdict, together with costs. From this judgment the defendants separately appeal, each of said appeals being taken by a notice filed less than sixty days after the entry of said judgment.

After the trial, the court proceeded to make elaborate findings, embracing the verdicts of the jury and many other facts in issue. These findings were filed on April 18, 1912, and thereupon, on the same day, there was entered an order entitled “Preliminary order and judgment of condemnation,” signed by the judge. This order declared that there were condemned for plaintiff a number of parcels of the property, embracing all the land sought to be condemned, describing them, each to be used for a specified purpose, and further that, upon the payment or deposit in court by plaintiff of one hundred and four thousand one hundred dollars for the defendants, the plaintiff would be entitled to a final order and judgment of condemnation. From this order the said defendants also appeal.

On April 29, 1912, a final order of condemnation was filed and entered. This order recited that the plaintiff had, on April 18, 1912, paid into court for the defendants the said sum of one hundred and four thousand one hundred dollars, together with the costs as taxed, and further alleged that the parcels of property, describing them, be condemned for plaintiff for certain specified purposes. From this order the said defendants each appeal.

1. Before considering the points presented, it is important to note that since this case was submitted to this court the people have adopted an amendment of section 4% of article

“No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of .has resulted in a miscarriage of justice. ’ ’

It has always been the desire and policy of this court to disregard unimportant and unsubstantial errors appearing in the record, and to reverse causes only for reasons affecting the merits of the case and the substantial rights of the parties. Our power to do this has hitherto been somewhat limited by the limitations upon our jurisdiction to consider the evidence. (San Jose Ranch Co. v. San Jose etc. Co., 126 Cal. 324 , [ 58 Pac. 824 ].) An important result of the aforesaid amendment is that it enlarges our jurisdiction in that particular. Prior to its adoption, if the evidence was in substantial conflict as to a fact in issue we were concluded by the decision of the trial court thereon for all purposes of the case, unless the error entered into and affected the consideration of that evidence. Under the above section, we have the power to review conflicting evidence for the purpose of ascertaining whether or not an error “has resulted in a miscarriage of justice.” It is indeed made our duty to do so, and the further duty is imposed to disregard a manifest error when, upon such examination, we shall not “be of the opinion that the error complained of has resulted in a miscarriage of justice.” It is no longer the case that injury is presumed from error; the injury must appear affirmatively to the mind of the court after the examination required, or from the nature of the error itself. (People v. O’Bryan, 165 Cal. 55 , 66, [ 130 Pac. 1042 ].) This amended section is now in force and binding upon the courts of appeal. And as it affects the remedy only, it applies to pending appeals, although they may have been submitted prior to its adoption. A party has no contractual- or vested right to have a judgment reversed because of an error which the court cannot say has produced what that section describes as a “miscarriage-of justice.” (People v. Campbell, 59 Cal. 245 , [ 43 Am. Rep. 257 ] ; Kerckhoff etc. Co. v. Olmstead, 85 Cal. 85 ,

It is also necessary in the same connection to determine a question relating to the right to a jury trial in condemnation suits and the procedure followed in this case.

Section 14 of article I of the constitution, provides that in condemnation cases compensation to the owner shall be ascertained by a jury unless a jury trial is waived. So far as that issue is concerned, therefore, the defendants had an absolute right to a jury trial. But the section says nothing concerning the mode of determining the other facts necessary to establish the right of the plaintiff to take the property in question. In effect, it. leaves the legislature free to provide the method of trial of all questions except that of compensation. The legislative provision on the subject is found in section 592 of the Code of Civil Procedure.

In Wilmington v. Donminguez, 56 Cal. 505 , the court decided that the owner, under this section, as it then stood, was entitled to a jury trial of all the issues in a condemnation suit. At the time of the trial in that case, section 592, on this subject, read thus: “An issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this code.” The court held that this provision governed the case and that the trial court could not disregard the verdict of a jury and make findings of fact contrary thereto upon the question of the necessity of the taking. This case was followed in Cummings v. Peters, 56 Cal. 597 , without discussion. The record in the latter case does not show when the trial took place. In 1874, section 592 was amended to its present form, which is as follows:

“In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived or a reference is ordered, as provided in this code. Where in these cases there are issues both of law and fact, the issue of law must be first disposed of. In other cases, issues of fact must be tried by the court, subject to its

power to order any such issue to be tried by a jury, or to be referred to a referee, as provided in this code. ’ ’

It is evident that this amendment made a radical change regarding the right to a jury trial. Under its provisions, in all actions except those enumerated in the opening clause, the issues of fact are to be tried by the court. The language is too clear on this point to require interpretation or to permit construction. The amendment was evidently framed with a view of adopting the principle decided in Koppikus v. State, 16 Cal. 248 , that is, that the constitutional guaranty of the right to jury trial, in section 7, of article I, applies only to common law actions and that it does not confer such right with respect to any action as to which it did not previously exist. Accordingly, it has always been held that this guaranty does not secure the right in special proceedings. (Dorsey v. Barry, 24 Cal. 453 ; Heyneman v. Blake, 19 Cal. 596 .) The Koppikus case and many others hold that the verdict of a jury, in a case where a jury trial is not a matter of right, is advisory to the court and that findings by the court are necessary to complete the record. (Waring v. Freear, 64 Cal. 55 , [ 28 Pac. 115 ]; McLaughlin v. Del Re, 64 Cal. 473 , [ 2 Pac. 244 ]; Curnow v. Blue Gravel etc. Co., 68 Cal. 264 , [ 9 Pac. 149 ]; Santa Cruz etc. Co. v. Bowie, 104 Cal. 288 , [ 37 Pac. 934 ] ; McCarthy v. Gaston, 144 Cal. 546 , [ 78 Pac. 7 ].) A condemnation suit is a special proceeding. It is not included in the classes mentioned in section 592 in which a jury trial is required. That section is expressly made applicable to condemnation suits. (Code Civ. Proc., sec. 1256.) It follows that, except those relating to compensation, the issues .of fact in a condemnation suit, are to be tried by the court, and that if the court submits them to a jury it is nevertheless required to make findings either by adopting the verdict thereon or by making findings in its own language.

Subsequent decisions recognize the fact that the aforesaid amendment changed the effect of the section as applied to condemnation suits, so that a jury trial is imperative, if not waived, only with respect to the issue of compensation. Thus, in California S. R. R. Co. v. Southern Pacific R. R. Co., 67 Cal. 62 , [ 7 Pac. 123 ], which appears to have been a closely contested case, the court says: “So far as the assessment of the value of the property to be taken is concerned (while perhaps a new trial of the question of value may be allowed by

The decision in Santa Ana v. Gildmacher, 133 Cal. 395 , [ 65 Pac. 883 ], might seem contrary to these views, but an examination of the opinion shows that the point upon which our conclusion rests was neither discussed nor decided in the case. The opinion merely applies the familiar rule that a direction to the jury to render a verdict on a question of fact submitted to it, where there was substantial evidence to justify a contrary decision thereon, is an invasion of the province of the jury and contrary to the constitutional provision that judges shall not charge juries with respect to matters of fact. The judgment was reversed for that reason alone.- The action was a suit in condemnation, but the point that the court was not required to follow the decjsion of the jury on the issue of necessity nor to submit that issue to the jury at all, was not mentioned, nor was section 592 referred to. We are unwilling to believe that the court would have gone so far as to disregard its plain language if that section had been called to its attention. The case cannot be regarded as a decision that the owner is entitled as of right to a jury trial upon all the issues that may be presented in an action of condemnation. It does not purport to decide that question. If it so held we should feel obliged to overrule the decision as contrary to the statutory law on the subject.

As a result of these propositions the conclusion follows that error in instructions, in a condemnation suit, upon other issues than that of compensation, and upon which the court has itself weighed the evidence and made findings, would not

In the present case, while the court submitted most of the questions in issue to the jury, it did not consider itself bound thereby, with respect to other propositions than that of value, but proceeded thereafter to make its own findings and conclusions of law, covering many facts not expressly included in the special verdict. These were filed on April 18th, as above stated, and judgment was accordingly entered thereon. The code requires, in a case of land taken for a railroad, that the jury, or the court, shall find the cost of fences along the line of the road and of cattle guards where fences cross the line. This is necessary, in order to adjust the amount of compensation the owner may receive. (Code Civ. Proe., sec. 1248.) The interrogatories submitted to the jury did not include these questions and there is no finding by the jury on those points. The court made a finding that no fences or cattle guards were necessary. This completed the findings required in order to lay the foundation for the preliminary judgment. We regard the judgment entered by the clerk on March 23, 1912, as premature and without authority or effect, for, upon the facts stated, the trial was not then concluded. Probably it would have become effective, if the court below had adopted and ratified it and the regularity of the proceedings was not attacked by an appeal. But it is evident that the court below did not regard it as effective, for it held the ease under advisement for several weeks and then, as above stated, made full findings upon the evidence and gave its own judgment thereon. We must therefore presume that the court itself weighed the evidence and determined all questions of fact, except that of compensation.

A large number of the rulings of the court are assigned as error. We will take them up as nearly as possible in the order in which they occur in appellants’ briefs.

2. We first take up the rulings made during the selection of the jury.

Upon the examination of the jurors on their voir dire, the juror Cook admitted that the fact of his employment by another railroad company might influence his verdict. This being the case he was properly excused on the challenge of the plaintiff. The fact that he contradicted this in other

It was within the discretion of the court to permit the plaintiff to exercise its remaining peremptory challenge after the panel was filled and all the jurors had been examined and passed for cause by both parties. (Silcox v. Lang, 78 Cal. 123 , [ 20 Pac. 297 ]); Vance v. Richardson, 110 Cal. 416 , [ 42 Pac. 909 ], decides nothing contrary to this. Of course, the discretion might in some cases be abused, but there is no showing of any abuse here.

The juror Roth was asked how, in the absence of evidence on the subject he would determine how much the plaintiff could afford to pay for the land to be taken. This question was properly excluded. The jury were to consider and determine the value of the land. The ability of the plaintiff to pay such value was wholly irrelevant to that issue.

3. The answer alleged that the plaintiff did not intend to construct the proposed railroad or any railroad whatever, and that it had begun the action for the purpose of acquiring the defendant’s land and not for any public use whatever, nor in good faith. In the opening statement plaintiff’s attorney referred to divers previous occurrences tending to show that the plaintiff had encountered opposition and difficulty in building its line to this land, but that it had persisted in its purpose nevertheless. The difficulty and opposition referred to might also, in some degree, have tended to1 excite sympathy for the plaintiff and animosity toward the opposition. The defendants’ objection to the statements was overruled. They assign the ruling as error and the statements as misconduct of the prevailing party. The facts referred to were proper for the purpose of showing that the plaintiff in good faith intended to build the proposed railroad over the lands sought to be taken. The circumstance that it might also produce other collateral consequences harmful to the defendants did not make the statements misconduct or the ruling erroneous, at all events, not unless the statements were made in bad faith for the purpose of improperly influencing the court or jury against the defendants. Bad faith was not shown.

4. The defendants objected to the introduction of the articles of incorporation of the plaintiff, on the ground that the name of the plaintiff so closely resembled that of a pre-existing corporation, that it would tend to deceive, and that, therefore,

5. Over the objection of the defendants a number of instruments and deeds were admitted purporting to convey to the plaintiff the railroad of which the line over the condemned land was to be a part and other property connected therewith, and to grant franchises to the plaintiff over other parts of its line. There was also admitted the plans and specifications

The same reasons apply to the ruling of the court allowing the president of the plaintiff to testify describing his efforts to overcome the obstacles thrown in the way of the building of the road by other corporations and persons and in defeating the opposition to the enterprise. It all tended to show that the plaintiff had been and was diligently endeavoring to build the portions of the plaintiff’s road leading up to the boundaries of the land in question and it had a direct bearing on the contention that the plaintiff was seeking to acquire the land for other purposes than a railroad.

It may be, as claimed, that some of this evidence would tend to create or arouse prejudice against the defendants in favor of the plaintiff by raising a suspicion that other railroad corporations were instigating the defense or obstructing the building of the proposed railroad. But it is a well established rule that if evidence is properly admissible upon the issues presented, it cannot be excluded because it may have ulterior or collateral effects detrimental to one of the parties. It is also very apparent that much time was consumed by counsel, both in examination in chief and on cross-examination of the respective witnesses, in inquiries concerning minute details of these various transactions and matters and that because so much time was devoted to this subject the opposition of other corporations was greatly emphasized. We cannot say, however, that plaintiff’s counsel were greater sinners in this respect than those of the defendants. In any event, it does not constitute misconduct sufficient to call for a reversal of the judgment. In view of the persistent and very numerous objections made by defendants’ counsel at every stage of plaintiff’s ease we cannot say that the plaintiff’s counsel transgressed the bounds of propriety in making the proof so full and elaborate.

6. It is earnestly contended that the plaintiff failed to show any right to condemn any part of the land to be used as freight wharves and sheds. The plaintiff’s articles of incorporation enumerated among its powers the power to build and operate the railroad in question and for that purpose to acquire, own, construct, and use all necessary wharves, docks, and chutes and the land required therefor. The proposed line of railroad was sixty-two miles long, extending from Val

Section 1238 of the Code of Civil Procedure authorizes the condemnation of land for wharves, docks, piers, and chutes (subd. 4.) Section 465 of the Civil Code empowers every railroad company to acquire, “hold and use all such real estate and other property as may be absolutely necessary for the construction and maintenance of such railroads, and for all stations, depots and other purposes necessary to successfully work and conduct the business of the road” (subd. 3) ; to construct and maintain such road, “with such appendages and adjuncts as may be necessary for the convenient use of the same” (subd. 4); “to erect and maintain all necessary and convenient buildings, stations, depots, fixtures and machinery for the accommodation and use of their passengers, freight and business” (subd. 9); and to acquire by eondemna

There can be no doubt of the right of the plaintiff to condemn land for freight sheds to be used for the convenient operation of its road in the transportation of freight. Such sheds would be a necessary adjunct to the road in carrying on the business of the transportation of freight thereon. There is no serious contention that this would not be so. We think it is equally obvious that where a railroad, intended for the carriage of freight, extends to a navigable river running through a large area of highly productive land and upon which river there is a heavy steamboat traffic in carrying such products, as is the case here, wharves for the convenient transfer of freight between the cars upon the railroad tracks and the boats plying upon the river, may reasonably be said to be necessary for the convenient operation of such railroad, and a necessary appendage or adjunct thereto. (See Central P. R. Co. v. Feldman, 152 Cal. 306 , [ 92 Pac. 849 ].) Land for such purpose is reasonably “necessary to successfully work and conduct the business of the road, ’ ’ within the meaning of section 465, aforesaid, and, therefore, by that section, the railroad company is authorized to maintain such wharves and to acquire by condemnation the land necessary for that purpose.

The next contention is that it must first obtain a wharf franchise and that it has failed to do so. Sections 528 to 531 constitute Title VI, Part IV, Division I, of the Civil Code. The code distinguishes this title by the sub-title “Bridges, Ferry, Wharf, Chute, ■ and Pier Corporations. ’ ’ Section 528 • declares that “No corporation must construct, or take tolls on a bridge, ferry, wharf, chute, or pier until authority is granted therefor by the supervisors, or other governing body having authority in that behalf.'' Section 529 declares that “every such corporation ceases to be a body corporate,” if, within six months from filing its articles of incorporation, it does not obtain such authority from the proper governing body, or if, within one year thereafter, it has not commenced the construction of the bridge, wharf, chute, or pier, and expended thereon ten per cent of the amount of its capital stock, or if, within three years from filing its articles, the said proposed structure is not completed. Section 530 provides that

Section 2921 of the Political Code provides that boards of supervisors “may grant to any railroad corporation authority to construct a wharf or pier on or in front of any lands owned by it” bordering on navigable water, with a license to take tolls for the use of the same. It is clear from this language that the purpose of the section was to give authority to the board of supervisors to grant franchises for public wharves to be used by the public generally in consideration of tolls to be exacted therefor. This is not only indicated by the language but it is further emphasized by the subsequent provision that the board may do so when it finds the use of such wharf or pier necessary to the exercise of the franchise of the railroad corporation for terminal purposes. There is nothing in the language of the section which purports to prohibit a railroad company from constructing and operating wharves for its own business, without authority from the board, at places where the railroad extends to navigable water and where it finds such wharves necessary for the successful operation of its road. It is clear we think that the section was intended to give the board of supervisors discretion to grant an additional franchise to such railroad, enabling it to carry on a public wharf and charge tolls thereon, where the board finds that such public wharf is necessary to the railroad franchise, and that it was not intended to forbid the railroad from maintaining a wharf for its own purposes without the additional authority to be granted under this section by the board of supervisors.

The additional claim is made that the use of the land along the river front by the plaintiff for wharves, as an adjunct to

7. In immediate connection with this question of wharves it is proper to consider an exception to one of the instructions. The articles of incorporation of the plaintiff confer upon it, among other things, power to own and operate steamers if necessary, proper or convenient for the convenient use, accommodation, maintenance, and operation of its railroad. Its right to exercise this power could not be questioned here. (Civ. Code, sec. 358.) The court instructed the jury that a railroad company had a right to own and hold steamers and run them in connection with its railroad and condemn land necessary for the accommodation of steamers owned by itself or other persons for the delivery of freight and passengers to and from the railroad.

As an abstract proposition there may be some doubt of the power of a corporation organized solely for railroad purposes to own and run steamers. The instruction for this reason may have been too broad (Vandall v. South S. F. Co., 40 Cal. 88 ), but in view of the express power given by the articles, as above mentioned, it could not have been prejudicial in the present case, for the articles gave plaintiff that power. It was proper to take into consideration the probable needs of the plaintiff to have wharves for the passage of freight and passengers to and from its cars and steamers upon the river, in determining the area necessary for such wharves.

8. Other instructions directed the jury that they could allow such quantity of land for wharves as they should believe reasonably necessary to accommodate the future business of the road in delivering and receiving freight to and from its

9. On the question of the necessity of the taking, evidence was also admissible of the nature of the country through which the road would pass and of the territory which would probably contribute freight and passengers to the road for carriage, of the amount and character of the products which such territory would probably yield at the present time and in its probable future growth and development, and of the volume of passenger traffic probable from such territory, and, generally, of all other facts that would tend to show the amount of traffic to be handled by the plaintiff’s railroad within a reasonable time in the future. The plaintiff has undertaken to serve the general public as a carrier of freight and passengers over its lines. It is entitled to take the neces

These propositions cover many objections to the admission of evidence. They include the evidence of the probable production of factories and quarries, arrangements with connecting roads for freight and passenger traffic, the feasibility of reclaiming swamp and overflowed lands and thereby increasing their production, the probability of such reclamation, with the means whereby it could be accomplished and the measures taken by others for that purpose, the needs from probable traffic to and from the city of Sacramento over plaintiff’s wharves and its cars, the area required for yardage, and comparisons with the yards of other similar railroad systems in actual operation, accompanied with proper explanations of the differences between the two systems, and also of the uses to be made of the spaces or passageways aforesaid between the wharves. There may be other details to which objection was made which come within the same rule which have escaped our notice because of the large number of such objections. We need not enumerate them.

10. On defendants’ cross-examination of Mr. Gregory, president of the plaintiff, he had testified, in effect, that the Sacramento and Woodland Railroad Company had projected a line of railroad from Woodland to Sacramento, connecting with plaintiff’s road near the bridge of the plaintiff on the land in controversy, and that plaintiff proposed to receive the cars of said company at this said connection and run them from thence to the city of Sacramento and other places over plaintiff’s line. Defendants endeavored to have him testify that a part of the land to be taken was to be used by said company as its own property and for,the construction and operation of its own road instead of the plaintiff’s road, but he insisted that this was not true. In view of this cross-examination, it was proper to permit him on re-direct examination to explain that the Woodland Company was then constructing its line and to show that the plaintiff’s road would

11. Mr. Dozier, a witness for plaintiff, testified at great length, the record thereof covering 254 typewritten pages. His testimony showed that he was a civil engineer by education and occupation; that he had had some ten years ’ experience in the laying out, construction, and operation of interurban railroads in California, that he was familiar with the effect of such roads in building up and developing a new region and increasing the traffic therein and in drawing freight and passenger business from established lines of steam railroads; also that he had traveled over a great part of the counties through which plaintiff’s road ran and had made investigations as to the products and capabilities of production of said territory and the probability of shipments therefrom. A report of the State Agricultural Society purporting to show the amount, in tons, pounds, or measures, of the products of those counties was introduced in connection with his testimony. He was then asked to state his opinion as to the proportion of these products that would probably be shipped over the plaintiff’s road when constructed. The court, over the objection of defendants, allowed him to answer. We think his opinion was admissible. The effect of electric roads in the settlement and development of the country they penetrate and in obtaining traffic previously going to other railroads is not a matter of common knowledge. The subject is comparatively new and the mass of the people have had no occasion to inquire concerning it or become familiar with it. The operation of railroads is a business of itself and its effects are not well known except by those who have actual experience and have studied the subject in connection therewith. Especially is this true with respect to inter urban railroads which are the result of recent inventions. It may well be termed a “trade” within the meaning of subdivision 9 of section 1870 of the Code of Civil Procedure, allowing opinion evidence.

“Witnesses who are skilled in any science, art, trade or occupation, may not only testify to facts, but are sometimes permitted to give their opinions as experts. This is permitted because such witnesses are supposed, from their experience and study, to have peculiar knowledge of the subject of inquiry which jurors generally have not. ... To warrant its introduction, the subject of inquiry must be one relating to

The state agricultural society is a state institution and among its duties prescribed by law is that of collecting information and statistics relating to the agricultural resources and material interests of the state and making a report of the same to the governor. (Stats. 1880, p. 49; Pol. Code, secs. 332, 705, 2326; Stats. 1863, p. 49; Stats. 1871-72, p. 442.) When so ordered by the state board of examiners, this report must be printed as a public document. (Pol. Code, sec. 334.) Such report is an official document and is admissible in evidence as such. (Code Civ. Proc., sec. 1918, subd. 6; People

12. Many expressions have come under our observation in reading over the evidence showing circumstances indicating that the railroad of plaintiff, when completed, was to be operated by electricity. The fact could be shown by circumstantial evidence as well as direct. The objections based on the assertion that there was no evidence of such fact are therefore without foundation and need not be further considered.

13. A map prepared by the witness Tibbetts purporting to show the land below the flood line in the Sacramento Valley was admitted in evidence over the defendants’ objection that it was not proven to be correct, or to have been compiled from legal or official sources. Parts of this map had been colored yellow, parts green, and parts red, by the witness. He testified that he was a civil engineer, that he had been many times up and down the Sacramento River, had seen most of the lands contiguous thereto, was familiar with all the reclaimed lands delineated upon the map and with most of those in process of reclamation and susceptible of reclamation as marked thereon, that in a general way he was familiar with the country lying along the Sacramento River and had been over it many times, that the map on which the colors were displayed was a printed map issued by a firm in San Francisco and that, aside from the coloring, it was an accurate map of the lands lying along the river so far as he knew; that he had been the engineer for a number of railroad and other corporations, having headquarters in Sacramento for some years, that studies had been in process for a year or more in his office to determine the amount of land reclaimed, being reclaimed and capable of reclamation, respectively, that the data he had put on the map was based partly on personal observation, partly on data gathered by surveying parties under his immediate direction and partly on a compilation from various reliable sources, and that he had been over most of the land personally.

He was not asked to point out the parts of the reclaimed land that had come under his personal observation. But on cross-examination, it appeared that he had used official governmental reports in compiling the map, and that he was very familiar with the condition of the country shown on the map. Taking his evidence as a whole, we are of the opinion that a sufficient foundation was laid to qualify the witness to state approximately the respective areas of reclaimed and unreclaimed land and for the introduction of the map for the information of the court and jury. The evidence had some bearing upon the question of the future business of the road and the necessity for the proposed taking. It was not a subject upon which accurate and precise information or evidence could easily be produced and for the purpose of the case an approximate estimate of the respective areas of the different kinds of land was all that the law would require to be shown. It was within the discretion of the court to allow the evidence, although its bearing on the question at issue was somewhat remote.

14. The witnesses Jubb and Hecke were properly permitted to testify to the approximate quantity of freight handled at Sacramento. They based their estimates on investigations they had made by inquiries of shippers and others engaged

15. The court did not err in admitting in evidence the report of J. G. White & Company made to the plaintiff company. The objection appears to be based on the fact that it contained statements of the probable tonnage of freight coming from the counties through which the plaintiff road will run. It appears, however, that it was not offered to show those facts but for a limited purpose. Wallace, the engineer who laid out the plan of tracks and other structures to be placed by plaintiff on the land in controversy for the operation of its road and upon which the plaintiff based its claim to condemn the land, testified to the various uses to which the several tracts comprised in the land were to be put. On cross-examination by defendants, he stated that this report was furnished him by plaintiff to use in fixing the quantity of land necessary for a terminal for the railroad at that place and in laying it out, and that he used the same in estimating the structures and quantity of land that would probably be required and made his plan accordingly. The general purpose of the cross-examination appeared to be to show that he had made the plans larger than necessary, so as to occupy more ground than the road would use. On re-direct examination the report was admitted in evidence in explanation of the witness’ previous testimony. It was competent for that purpose, though unimportant in its bearing on the case. It

16. A number of persons called as witnesses for plaintiff were allowed to give opinions as to the value of the property, after an examination to disclose their qualifications to give such opinion. To this ruling defendants excepted. One Johnson was called as a witness for the defendants on the same subject. He was examined concerning his qualifications and the court thereupon refused to allow him to give his opinion. To this ruling also defendants excepted. It is claimed that his testimony as to his qualifications was not materially different from those of the aforesaid witnesses for the plaintiff and that one or the other of the rulings must necessarily be erroneous.

The question whether or not a witness is qualified to give his opinion, as evidence upon a matter-in issue, is submitted to the trial judge in the first instance, and is to be determined by him before such opinion may be given. (Fairbank v. Hughson, 58 Cal. 314 .) It is, in itself, in the nature of a trial of a question of fact, by evidence addressed to the judge alone, and, as in other decisions on questions of fact by a trial court, his ruling thereon is a matter of discretion and will not be overturned on appeal unless there was an actual want of evidence to support it or a clear .abuse of discretion in ruling upon the evidence given on the subject. (Howland v. Oakland etc. Co., 110 Cal. 521 , [ 42 Pac. 983 ] ; Mabry v. Randolph, 7 Cal. App. 427 , [ 94 Pac. 403 ].) If there is any substantial evidence to sustain the ruling, the exception thereto will be disallowed. (Conness v. Commonwealth, 184 Mass. 544 , [ 69 N. E. 341 ]; Klous v. Commonwealth, 188 Mass. 152 , [ 74 N. E. 330 ] ; Omaha etc. Co. v. Douglass Co., 62 Neb. 7 , [ 86 N. W. 936 ] ; 1 Wigmore on Evidence, sec. 560; 1 Gr. on Evidence, 16th ed., sec. 430f; 2 Elliott on Evidence, secs. 1036, 1037; 17 Cyc. 31.) The witness, Johnson, had less knowledge of values than the witnesses testifying for the plaintiff. He had no actual knowledge of any sales of land on the Tolo side of the Sacramento River. Until two years before the trial he had lived on a ranch five miles north of Sacramento.

The foregoing comprise a small proportion of the exceptions taken to the rulings during the trial, and mentioned in appellant’s briefs. Those not here noticed are either covered by what has been said or they are so trivial as to require no mention.

17. Objection is made to an instruction stating that, as the power of eminent domain is necessary for the public good, “it would be unjust to the public that the plaintiff should be required to pay the owner more than a fair indemnity for the loss he sustains by the appropriation of his property for this general good. On the other hand, the owner being compelled to part with his property, whether he desires to sell or not, the law allows him just compensation therefor. ’ ’ The criticism of this instruction is that it is argumentative. The proposition stated, in the instruction is correct and we see no objection to the jury being so informed. It was not improper to instruct the jury that they should allow the owner of the land just compensation and that the public interest demanded that he should receive no more. This was the substance of the instruction.

The next objection is to an instruction regarding opinion evidence. It directed the jury to weigh the testimony of witnesses giving opinions as to value “by reference to the whole situation of the property and its surroundings, and all the surrounding circumstances, and by applying- to it your own experience and knowledge. While you cannot act in any case upon particular facts material to its disposition resting in your private knowledge, but should be governed by the evidence adduced, you may and should judge of the weight

There was no error in instructing the jury that in determining the questions of necessity they should take into consideration the character of the business proposed to be done by plaintiff’s railroad and the manner of doing it and the future needs of the communities which the plaintiff would serve and that in so doing they could consider the number of persons to be served by the plaintiff and its road. All these things had a direct bearing upon the probable area required by the plaintiff for its terminal at Sacramento.

The appellants complain of certain instructions which, it is contended, directed the jury that, in determining the question of necessity, they should consider that plaintiff was entitled to take a strip one hundred and sixty-five feet wide across the land solely for the purpose of placing its main tracks and necessary side tracks thereon, although they should find that the entire width was not required for such tracks and that for other purposes, the adjuncts and appendages, they could allow the additional land necessary, without requiring plaintiff to use any of the said strip for such other purposes, although they might believe that it could do so without injury to its business. The most that can be said in favor of this objection is that the instructions, considered together, are not entirely clear. One of them expressly declares that the plaintiff is entitled to a one hundred and sixty-five foot strip, “if necessary for its right of way.” We do not think the instructions need be construed as the appellant claims and as the court itself, after several weeks of consideration, found that the strip was required for the main line and necessary

18. The action was commenced and the summons issued on May 5, 1910. In this connection the court instructed the jury that in determining the compensation to be given the defendant, they must consider the value of the land as it was at the date of the commencement of the action. This was in exact accordance with the provisions of section 1249 of the Code of Civil Procedure as the section stood at the time the action was begun. It then provided that, for the purpose of asserting the compensation, the right should be deemed to accrue at the date of the summons and that the actual value of the property at that date should be taken as the measure of compensation. Afterwards, by an amendment taking effect June 9, 1911, [Stats. 1911, p. 842], the following clause was added to the section: “provided, that in any case in which the issue is not tried within one year after the date of commencement of the action, unless the delay is caused by the defendant, the compensation and damages shall be deemed to have accrued at the date of the trial. Nothing in this section contained shall be construed or held to affect pending litigation. ’ ’ If the last sentence of this proviso is to be given effect, the amendment does not apply to the ease at bar, inasmuch as it was pending at the time the amendment was enacted. The argument on this point is that the provision is unconstitutional because if allowed to be effective it would constitute class legislation; that persons whose property was taken by actions begun before the amendment would have the compensation fixed by the value at the time the action was begun, whereas those whose property was taken by actions begun after the amendment, would come under the proviso, if the case was not tried within one year after its commencement. We think this argument is without merit. The fact that cases were pending at the time the amendment was enacted, concerning which rights may have accrued or negotiations may have been in progress, sufficiently distinguishes such cases as a separate

19. For the right of way for main tracks and the necessary side tracks and other tracks for chutes, yards, and storage purposes, the judgment gives the plaintiff only an easement in the land. For that part of the land to be used for a storehouse, a blacksmith shop, a machine shop, wharves, offices, and other purposes requiring the construction of substantial buildings thereon, a fee simple estate was condemned. We perceive no error in this. Section 1239 of the Code of Civil Procedure provides that a fee may be taken when land is condemned for a public use requiring the erection of “permanent buildings” thereon. The structures necessary for the purposes thus designated would be of as permanent a character as buildings for any ordinary use, and we think they are “permanent buildings” within the meaning of that section.

The purported judgment of March 23, 1912, is declared a nullity but appellants do not recover costs on appeal on account thereof. The judgments of April 18, 1912, and of April 29, 1912, are affirmed.

Henshaw, J., Lorigan, J., Melvin, J., Lennon, J., pro tem., and Angellotti, C. J., concurred.

Note.—Justice Sloss being disqualified, Justice Lennon, the presiding justice of the District Court of Appeal for the First Appellate District,’ participates herein pro tempore, pursuant to section 4 of article VI of the constitution.

Rehearing denied,