City of Stockton v. Vote

Pursuant to certain resolutions passed by the city council of the City of Stockton and the affirmative result of an election participated in by the qualified electors of the City of Stockton, the plaintiff in this action proposes to erect a restraining dam, or a dam to control the flood waters of the Calaveras River at a point on said stream in the county of Calaveras about three miles from the town of Valley Springs. The defendant in this action is the owner of a tract of land lying easterly of the site of the proposed restraining dam and a portion of whose land lies within the basin that would be submerged in the operation of the dam herein referred to. By its amended complaint in this action the plaintiff seeks to condemn or. acquire a flowing easement for the flood waters restrained by the proposed dam over 66.6 acres of the lands belonging to the defendant, and sought a judgment of the court fixing the price of said easement, damages to be allowed for the improvements situated on the said 66.6 acres, and also such sum as should

Upon the trial of this action had before a jury the value of the land proposed to be taken by the City of Stockton for flowage purposes was fixed at the sum of $6,606; the value of the improvements taken, $10,000; and the damages due to the severance assessed at the sum of $3,400, aggregating the total sum of $20,000. Judgment was entered accordingly. From this judgment the plaintiff appeals.

In support of its appeal the appellant alleges, among others, that the trial court erred in the following particulars: 1. In considering the term "market value”; 2. That testimony was improperly admitted showing possible value of property in use by condemnor; 3. That testimony concerning the value of the defendant’s land under altered conditions was improperly admitted; 4. That the court erred in admitting evidence concerning the reasonable value of defendant’s land, assuming that other necessary lands had been and would be joined to that of the defendant; 5. That witnesses not properly qualified were permitted to give opinion evidence concerning the value of the defendant’s land; 6. That witnesses were allowed to answer hypothetical questions based upon the testimony of other witnesses; 7. That the court erred in admitting a report made by Charles E. Ashburner to the city council of the City of Stockton, and also a report on flood problems of the Calaveras River, signed by one Harry Barnes.

The record shows that the City of Stockton proposes to erect a restraining dam of the height of 144 feet on the Calaveras River at the site above mentioned, that by means of spillways and flood-gates, it proposes to control the flood waters of the Calaveras River during the rainy season in such manner as to avoid the danger of periodical flooding, to which the City prior to the year 1911 was subject, that just prior to the year 1911 a diverting canal had been built to the east and north of the City of Stockton, by means of which the flood waters of the Calaveras River were diverted around the City and inundation avoided; that the diverting canal, however, throws the flood waters back upon adjoining agricultural lands and does not afford the City of Stockton sufficient immunity from the flood waters coming down from the watershed of the Calaveras River; that

The testimony introduced on the part of the defendant, in most part, had reference to and directed to a possible dam, 200 feet in height, that might be erected on the site selected by the City of Stockton, placing the maximum flood contour line at an elevation of 730 feet. Four expert witnesses were placed on the stand by the defendant and severally proceeded to testify as to the possibility of erecting a 200-foot dam, also as to 394 square miles of watersheds lying easterly of the dam; that such a dam would have a reservoir capacity of about 350,000 acre-feet, and would afford water for irrigation purposes of from 34,000 to 50,000 acres of land situate in the foothills and plain lands of Calaveras and San Joaquin Counties; that such a reservoir would afford water for domestic purposes for the cities of Lodi, Stockton, Antioch, and other places, and also might be used for power purposes at a point near Jenny Lind, in the county of Calaveras, where a drop of 200 feet might be had. The reports of Ashburner and Barnes go into detail of the projects mentioned by the expert witnesses and the possibilities attendant upon the construction of such a dam, the Barnes report going into detail as to estimated costs. A consideration of the question presented upon this appeal

Mr. M. 0’Shaughnessy of San Francisco, a witness called on the part of the defendant, after detailing at length his qualifications and experiences as an engineer, testified partly as follows: “I have been on this reservoir basin three times; I know the portion of the reservoir that is at the western outlet of this river, and which has been testified to, and designated the dam site, where the structure to hold the waters will be constructed; I have observed at what height a dam or embankment can be constructed on that site; I believe it could be economically built up to a height of 200 feet. . . . Q. What purpose would such an embankment built at that point serve so far as you can judge from your examination of that locality ? A. That dam would serve to impound a very large body of water behind it, which has a value for many purposes. It has a value for domestic use for cities; it has a value for irrigation use for farming; it has a value also for power use to take the energy out of it, and it is also of a.subsidiary value for a regulating reservoir provided enough spillways will pass through the dam to pass the floods. Q. Do you know the location of this dam to any irrigable lands upon which the water from this dam could be used? A. Yes. Q. Where are such irrigable lands located? A. From the foothills where the stream discharges on the San Joaquin valley over towards Stockton; all those lands adjacent to the stream are capable of development by irrigation. Q. Do you know whether or not they are subject to gravity irrigation? Which are now being irrigated by the flowing of water on to those lands from any ditches or aqueducts ? A. I would say in a moderate way by wells. Q. In your opinion as an engineer what would be the economical manner of irrigating those lands if such a reservoir as you have mentioned could be constructed and

Mr. Galloway, a witness called by the defendant, after detailing his experience as an engineer, testified: “A dam erected at the point referred to, 200 feet in height would impound 350,000 acre feet; that the water could be used for domestic consumption, irrigation, power and the reservoir site could be used for flood control; that the waters could be used for municipal purposes in any of the cities in the immediate vicinity; that it has been proposed to store water in that reservoir site and carry it out to Oakland; the water could be stored in the reservoir, flown down the stream to certain distances, taken out by canals on each side of the river and delivered to the lands adjacent to .the river; this reservoir is similar to others along the foothills of the Sierras; the usual procedure is to allow the water to flow a certain, distance down the natural channel of the stream, pick it up with a diverting dam, because the lands all lie below the reservoir; therefore, the water will flow by gravity through canals on to the lands; the fall between the reservoir and the first lands to be irrigated is in the neighborhood of four hundred feet; a power plant could be erected so as to use the waters from this reservoir; the power plant could be placed somewhere in the vicinity of Jenny Lind; the uses to which I have referred are the ordinary and usual and practicable uses of the water. Q. Mr. Galloway, you stated that one of the uses that could be made of this reservoir if constructed to the height of two hundred feet and containing the volume of water that has been testified to, three hundred fifty thousand acre feet maximum, what, in your opinion, as an engineer, would such a reservoir take charge of or supply in the way of irrigation and the number of acres? A. The answer to that question involves a statement that there is a certain watershed above the reservoir site from which the water will flow to fill the reservoir and under the conditions of the Calaveras- Reservoir site, the reservoir could and is adapted to be used to irrigate some thirty-five or forty thousand acres of land. Q. Do I understand you, as an engineer, to state that the use of the water for both irrigation and for power can be made at the same time? A. The same idea of the use of water for irrigation and power are carried out in developing

M. C. Polk, a witness called for the defendant, after stating his qualifications and experience as an engineer, testified along the same general lines as testified to by the witness O’Shaughnessy, and testified, in part, as follows: “Q. I will ask you again, to what uses, in your opinion, as an engineer, can be made of this proposed reservoir, or a reservoir on this site filled with water? A. The water impounded in the reservoir could be used for four different purposes: municipal purposes, domestic uses, flood control, and most important in my mind is for irrigation and for power. Q. I will ask you again if the quantity of water that could be stored in this proposed reservoir would be adequate for the City of Stockton, assuming that they have a population of 55,000 people? A. 55,000, being the present population, would use about 10,000 acre feet from the reservoir a season. One year instead of a season, that is not allowing anything for future growth. Q. Assuming that the population of Stockton would be growing and increasing

N. Randall Ellis, a witness called by the defense, after stating his qualifications and experiences, testified along the same general lines as that of the other experts. He testified as to hjs experience with the installation of power plants, the uses of water for irrigation and power purposes,-.the situation of the reservoir in question, that he had given consideration to the subject of the use of a portion of the waters impounded by a dam 200 feet in height erected on the site in question, and was asked the following questions: “Q. Will you state what consideration you gave to that particular use? A. Yes, sir, with my familiarity with the growing demands for water throughout California, throughout all municipalities, some familiarity with the existent situation in Stockton and in all valley towns, I believe, that a municipal water supply could be supplemented quite economically for water withdrawal from this proposed reservoir without any appreciable interference with its function either as an irrigation reservoir or with a power by-product.” This witness, in answer to a question as to the market value of the land sought to be condemned, answered: “A. I would say sixteen -thousand dollars as a minimum value, with a possible differential above that between ten and fifteen per cent. Q. That would mean sixteen thousand dollars with ten per cent differential above that, would be sixteen hundred more, or fifteen per cent above that would be twenty-four hundred more, is that what you mean? A. Yes, sir. In other words, my idea being this, if I may explain my

During the cross-examination by the defendant of the witness Hogan, the defendant offered, and over the objection of the plaintiff, the court admitted in evidence, a report signed by Harry Barnes, purporting to deal with flood problems of the Calaveras Biver, dated October 31, 1919. This report takes up and gives the opinion of the writer upon the subject of controlling the flood waters of Calaveras Biver; it sets forth a description of the country involved, its physical characteristics, the improvements in the way of levee building and other matters relating to the waters passing over San Joaquin County, contains tables showing annual rainfall, as compiled by the United States gauging station covering the period of years referred to by the witnesses and, also, plats or maps, copies of which were elsewhere admitted in evidence.- This report is too lengthy to be set out in extenso, and the following excerpts are taken therefrom to illustrate the general character of the report:

“The interest of the federal government is primarily that of navigation on the San Joaquin Biver, and the maintenance of navigable waters to the city of Stockton. The San Joaquin Biver has a difficult debris problem to contend with. For maintaining a necessary deep water channel in that stream, thousands of dollars are spent annually for dredging, straightening channels, etc., and upon the assumption that prevention is better than cure, it is realized that the

ideal way to control the debris is to prevent it from reaching the river at all, if such a scheme be economically feasible. Prior to the construction of the Stockton diverting canal, completed in 1910, the government had expended for dredging in a period of 23 years, up to 1908, the sum of $233,000 to maintain open channels in Stockton and Mormon sloughs. The debris thus dredged came principally from the Calaveras River floods, and the expenditure of about $10,000 per year for this purpose, capitalized at 5 per cent, represents interest on $200,000.

“While it is true that since the construction of the canal the government has been relieved of much of this dredging work in Stockton and Mormon channels due to the fact that silt has been deposited in the canal and the lower Calaveras River, such use of the diverting canal cannot be considered as a permanent solution of the debris problem. The canal is now filled several feet deep with sediment and its capacity greatly reduced, and it is apparent that a continuation of its effectiveness will necessitate extensive and regular dredging of the canal and lower Calaveras River, before many years elapse. . . .

“The city of Stockton lies directly in the path of the Calaveras flood waters. Levees have been built around the city to keep out the high water of the Calaveras and San Joaquin rivers, but these levees do not afford complete immunity from danger. The levee built in connection with the construction of the diverting canal saved the city from a most disastrous flooding from the east side in 1911, but the city continues to be menaced by Calaveras water from other directions.

“Aside from the actual saving of property due to keeping out the flood waters, it is unnecessary to enlarge upon the advertising value to a city to be able to assure investors and prospective residents that flood dangers have been removed. As an instance of this, it is stated that a considerable portion of the growth of Stockton’s population and industries of recent years has been due to the partial-security afforded by the presence of the diverting canal levee east of the city.

“It should also be emphasized that the prosperity of a city is in direct ratio to the prosperity of the surrounding country, tributary to that city. Stockton’s interests are in

separable from the interests of the agricultural country-surrounding her, of which territory she is the business and shipping center, and to the extent that flood control on the Calaveras River contributes to the upbuilding of that country. Stockton has an indirect but very definite interest in the project. . . .

“The flood of 1911 was the highest of which we have record and is stated to have been the greatest within the memory of old settlers—since that of 1862. Aside from the flood of 1911, however, it will be seen that floods of between 30,000 and 40,000 second-feet may be considered of possible occurrence during any season. After the March rains the discharge rapidly decreases and during the summer and autumn months the flow is practically nothing and does not pick up until the storms of the following winter.

“Although the records of the U. S. Geologic Survey only extend from 1907 to date, it is fortunate that within that period have occurred seasons of both maximum and minimum runoff. As stated above, maximum conditions obtained in 1911, while the successive seasons of 1912 and ‘ 1913 comprised the dryest two-year period experienced in California for many years. Nineteen hundred eight, which was also a dry year, was immediately preceded and followed by seasons of abnormal rainfall and so the scarcity was not so noticeable as in the case of the two-year period of 1912-13. . . .

“The specific location of the above area, comprising some 34,000 acres between the diverting canal and Bellota, is noted simply to give an idea of the magnitude of a feasible-sized irrigation project which could utilize' the reservoir in conjunction with flood control. The use of the water is not limited by the topography to this area, however. If the farmers of this region do not wish to use the water there is plenty of land otherwise north of the Calaveras River and south of Mormon Slough that would be benefited by a gravity irrigation supply, and might perhaps be glad to get it.

“In an irrigation project comprising 34,000 acres of good land it is probable that 90 per cent or 30,600 acres will be under irrigation when fully developed. Figures are based upon the assumption that half the area goes into alfalfa and other crops requiring considerable water, and half put into fruit trees or vines. It is assumed that 2y2 acre-feet

per acre net per year will be required for the alfalfa and 1.0 acre-foot net will be used on trees or vines. This gives a net requirement for the project of 1.75 acre-feet per acre, totaling 53,550 acre-feet, or practically 54,000 acre-feet annually. Estimating that losses between the reservoir and the land to which the water is applied amount to 40 per cent of the amount of water available, the gross requirement for the district will be 90,000 acre-feet per year. The water should be available for a season of six months. Using about 25 per cent of the total during each of the months of maximum demand would require a canal with a capacity of 375 cubic feet per second at the head, or 15,000 statute miner’s inches. . . .

“This addition to the dam and reservoir will add to the cost of the project as outlined for flood control alone by the following amount:

“Additional masonry in dam, 60,000 cubic yards

at $8...................................$480,000 00

“Additional acreage in reservoir, 1000 acres at

$25 ................................... 25,000 00

$505,000 00

“Contingencies, 15 per cent................... 75,750 00

“Total .....................$580,750 00

“For the irrigation of a tract of 34,000 acres this is at the rate of $17.17 per acre. Construction of canals and laterals to this tract will probably cost close to $25 per acre, making the cost for irrigation about $42 per acre. This latter estimate of canals and laterals is a general figure, and can only be determined accurately by a survey of the ditches proposed 'and ascertaining the yardage of material involved, but the figure given above is considered conservative.

“The details of the administration of the combined interests of flood control and irrigation would depend considerably upon whether the irrigation area lay within or without the flood control district. In any case it would doubtless be better to have two separate organizations, although the duties of the officers could often be combined and certain overhead expense thus eliminated.

“Following is a brief summary of the matter of the foregoing report:

“(1) The interests involved in the question of Calaveras Biver flood control are, United States government, State of California, county of San Joaquin, city of Stockton, public utilities operating within the flooded or menaced territory, and agricultural lands flooded or menaced.

“(2) The Calaveras Biver watershed extends to an altitude of 6000 feet with a mean elevation of about 2000 feet. It embraces 500 square miles above Bellota, 395 square miles above the Jenny Lind gauge of the U. S. Geologic Survey, and 368 square miles above the Valley Springs dam site.

“(3) Becords of the flow of the Calaveras Biver kept by the U. S. Geologic Survey are available from 1907 to 1918. The record of the big flood of 1911 of the U. S. Geologic Survey is accepted as the best data available thereon, and matter of this report is based upon that record. The above period of observation of the river includes the consecutive dry seasons of 1912 and 1913, upon which figures of storage requirement for irrigation are based.

“ (4) A comparison of a by-pass plan of flood control with that of utilizing the Valley Springs reservoir indicates the latter plan to be the more feasible.

“(5) An analysis of the reservoir requirements finds as follows, for full flood control:

“Capacity of channels below reservoir placed at 12,500 cubic feet per second.

“Capacity of reservoir, outlets, 7500 cubic feet per second.

“Capacity of reservoir, 163,000 acre-feet.

“Area of reservoir, 2900 acres.

“Maximum height of dam, 151 feet.

“(6) Diamond drill borings made at the Valley Springs dam site indicate a feasible and sufficient foundation thereat.

“(7) Figures on a partial protection scheme are offered, based upon reservoir capacity to accommodate yearly or normal floods, but not the unusual flood such as that of 1911. For this plan is found as follows:

“Capacity of reservoir, 89,000 acre-feet.

“Area of reservoir, 2100 acres.

“Maximum height of dam, 121 feet.

“Estimated cost of full protection plan, $1,613,450.

“Estimated saving in first cost of partial protection over full protection plan, $477,000.

“(8) It is not considered that this saving is justified on account of the great damage that would be caused by the abnormal floods.

“(9) The proposed flood control district includes 90,800 acres flooded or menaced by the Calaveras River water. The status of respective sections of this district is explained in the body of the report.

“(10) It is not assumed that all lands within the proposed district will be equally assessed. It is expected that some plan such as that used by the State Reclamation Board in large districts will be applied to determine the rates of taxation on different lands for benefits conferred by flood control.

“(11) It is considered that the problem of lands flooded or menaced by the present operation of the Stockton diverting canal is a question separate and apart from the general flood control scheme, and one that logically should be settled by the parties at interest without involving the proposed district further than that the general relief offered by such a district may make differences between those parties easier to settle.

“(12) A capacity of 284,000 acre-feet in the Valley Springs reservoir will provide storage for sufficient water to irrigate 34,000 acres through a two-year dry period such as 1912-1913, in addition to reserving sufficient capacity to safely control any flood of the magnitude of that of 1911. Such additional storage is estimated to add to the cost of the flood control project $583,750, or at the rate of $17.17 per acre on a 34,000 acre tract for irrigation storage alone. A canal and lateral system to these lands will bring irrigation costs up to about $42 per acre.”

This report refers also to the diverting canals built by the United States government to protect the City of Stockton from overflow and its insufficiency in that respect, also tabes up the subject of constructing a by-pass and finally concludes with the general summary which we have herein set forth. The defense also offered, and over'the objections of the plaintiff, the court admitted in evidence a report made by Charles E. Ashburner to the city council of the City of Stockton on the subject of flood protection for the

“We recognize that Stockton is menaced by flood waters from two sources, the Calaveras and its tributaries, and the Little John Creek, (including other small streams having their sources between the Calaveras on the north, and the Stanislaus on the south). The greatest menace confronting us to-day, however, is from the flood waters of the Calaveras River.

“The plan submitted proposes to protect the city from all flood menace and to furnish water for beneficial uses. Keeping the fiscal situation in view, it is proposed to eventually write off a large portion of the initial expenditure for flood control by the values created in the stored water; to initiate the work and to share these waters with adjoining communities upon fair and equitable terms.

“The dedication of irrigation water upon lands immediately adjacent to Stockton provides for all time the municipal supply of such area when later annexed by the expansion of the city.

“The dedication of water on neighboring lands and communities assures the growth of a higher and more productive contributory territory.

“Having in view the ultimate prosperity of the community, the question of flood control, water supply, and irrigation will be treated under the following chapters. . . .

“Damsite is located on the southwest quarter of Section Thirty-one (31) in Township Four (4) North, Range Eleven (11)' East, M. D. B. & M.

“The site is in a narrow canyon between hills that rise about 200 feet above the bed of the river. The south bank rises, steeply at an angle of about 30 degrees, while the north bank is flatter. The distance from hill to hill at the 690 foot elevation being approximately 1275 feet. The site

is well adapted for storage purposes, and has a maximum capacity of 350,000 acre feet.”

“The dam as described, 160 feet in height, in addition to affording regulating capacity against flood waters to the extent of 163,000 acre feet, which is the amount estimated to be necessary to reduce the flood waters to 7500 cubic feet per second, also furnishes storage for 37,000 acre feet of water to be put to beneficial uses, such as domestic water supply and irrigation.

“The surplus water insures for all times a water supply for the City of Stockton, but will not be needed for several years and can be used in the interim for irrigation purposes, thereby reducing the cost of flood prevention. The matter of augmenting the irrigation supply in order to release water for the municipal purposes is treated in subsequent chapters. The analysis of the matter is this: We have flood protection and storage space for water for municipal purposes and for irrigation. . . .

“To anyone who has studied conditions in the San Joaquin Valley, it is unbelievable that with water available at the above cost, that an irrigation district that would use all this water would not be formed within a very short time. . . .

“It should not be necessary to direct one’s attention to the value of water to the lands in this community, or to the lands which could be irrigated from this source of supply. One need only look at the marvelous results which have been accomplished in the South San Joaquin, Oakdale, Turlock, Modesto and other irrigation districts of the San Joaquin Valley.

“All irrigable land below the 600 foot elevation lying between the Mokelumne River on the north, and the South San Joaquin and Oakdale districts on the south, are within the economic reach of this supply.

“In the foothill district of the Sierras lies a thermal belt where mild and equitable temperatures prevail throughout the winter, and on which citrús fruits thrive. The soils in the valleys of this foothill region in Calaveras County are of a sandy loam character, and are well adapted to the raising of deciduous, as well as the citrus fruits. One need only to look to the marvelous development of the fruit industry in Placer County around Loomis and Auburn.

“Lying in San Joaquin County "below the 150 foot elevation is a vast acreage which should be under irrigation.

“North and east of Stockton in the vicinity of Lodi and Lockeford is a highly developed territory where land values of #1,000 to $1,500 an acre are not uncommon, and upon which irrigation by pumping is expensive and increasingly so with a falling water table, which has been very noticeable of late. Unless an economical gravity supply of water can be obtained for these lands, there must be a great depreciation in the value of the land and in the crops derived from the same.

“It is very noticeable that the crops raised in this section of San Joaquin County are seasonal, and do not bring in the steady monthly returns that would be derived from a more extensive dairy industry, which fact coupled with the condition that makes it necessary for the State of California to import a large portion of its dairy products, would lead us to believe that with sufficient water an industry can be built up in this section of the state that will be reflected in the general business of the community.

“Lying between the Calaveras River and the Mormon Channel is a large acreage of high productivity and increasing land values. In this territory the deciduous fruit and nut industry is rapidly developing. This territory like the territory in the vicinity of Lodi and Lockeford must of necessity resort to irrigation if productivity and land values are to be maintained.

“It is inconceivable that the residents of Stockton and vicinity and those of the foothill districts of Calaveras County should fail to see the enormous community benefit derived by us all from taking advantage of a situation which gives us too much water at one time in the year and too little at another.

“It is believed by some that water can be stored in the Mokelumne River for the purpose of developing electric power and irrigation. It is only necessary to make a thorough study of the situation to be convinced that although these things may be done, the enormous cost of storage of water per acre foot on the Mokelumne when compared with the Calaveras, makes the Mokelumne project financially unsound. . . .

“Is it possible that further endorsement of this method of control could possibly be required by anyone? It seems hardly necessary to speak of the small ultimate outlay for this project as security for the property and peace of mind of the citizens of Stockton.”

[1] The theory upon which the Barnes report was admitted appears to be that it was referred to by the witness Hogan, in his testimony, in that he had copied certain tables therein contained, which were copies of tables made by the United States gauging officers, showing the run-off of the Calaveras River, and also had copied certain of the maps contained in said report, which were, in turn, copies of government maps and also that upon cross-examination, counsel for the defense had questioned the witness as to certain portions of said report. The maps and tables concerning which the witness was examined were admitted without objection, and specific portions showing the area of the watershed were likewise admitted. The remainder of the report, which includes all the excerpts which we have set forth, were admitted over the plaintiff’s objection. It is further argued that the Barnes report is admissible under subdivision 6 of section 1918 of the Code of Civil Procedure. We do not find any of these reasons tenable. The Barnes report does not purport to be a state document. It shows upon its face (page 6) that it was denied legal authority by the state legislature. It also shows upon its face that it is a compilation of statistics and is the opinion of an engineer by the name of Harry Bames, based upon the investigations conducted by him under his statement that it was made by him at the direction of W. F. McClure, state engineer. [2] No objection was made to the introduction of this report on the ground that it was not properly authenticated, but that fact does not make the opinions and theories contained in the report admissible in evidence in this -case, because of the further fact that the report is not an official document, as that term is used in section 1918. It was not made in pursuance of any duty enjoined by law, but as therein stated, shows that it was expressly undertaken in the absence of such authority, and, therefore, constitutes nothing more than the private compilation, theories and opinions and estimates of the writer Harry Barnes. Had it been made in the line of official duty, in pursuance of an

We will next consider the report made by Charles E. Ashburner, city manager of the City of Stockton, to the city council of the City of Stockton, bearing date of February, 1924. Respondent is in error in stating that only a general objection of incompetency, irrelevancy, and immateriality and hearsay was made to the whole of said report. If such were the ease and any portion of the report were admissible, then it might be that a general objection would be insufficient, but an examination of the transcript shows that between five and six pages are covered by the special objections urged by counsel for plaintiff. These ob

[4] In support of the admissibility of the Ashburner report, the respondent urges two propositions: 1. That it was included in and made a part of certain resolutions adopted by the city council of the City of Stockton; and 2. That it is admissible as being an admission against interest by the City of Stockton, the plaintiff in this action. The first resolution referred to adopted by the city council April 24, 1924, among other things, contains the following: “That it concurs in that portion of the report of the City Manager providing for a dam to control the flood waters of the Calaveras River and for a levee protecting the city against the waters of Little John Drainage System,” and a further resolution adopted May 5, 1924, by the city council of the City of Stockton reciting the formal resolutions and containing the following section: “That the public interests and necessity demanded the acquisition, construction and completion by the City of Stockton of certain municipal improvements, to-wit: the construction of a restraining dam on the Calaveras River in the Southwest quarter (SW]4) of Section 31, Township Four (4) North Range Eleven (11) East, Mount Diablo Base and Meridian, for the protection of the City of Stockton from floods and for the use of said impounded water for such purposes as shall not be inconsistent with the purposes mentioned in said resolutions.” Another one of these resolutions purported to adopt the Ashburner report further than the first resolution concurs in that portion thereof relating to flood control of the waters of the Calaveras River for protective purposes, and if the first resolution which does concur in the Ashburner report in so far as flood control is concerned be treated as an adoption thereof and as a part of the resolution of the city council, that would not admit the other portions of the report which are merely arguments and opinions relating to other matters and which, therefore, became purely hearsay statements and opinions by Mr. Ashburner. [5] Nor can

[8] Again, in the testimony of the witness Polk, the same speculative testimony appears where reference is made-

The voluntary statements of the witness O ’Shaughnessy as to the condition of the municipal water supply of the City of Stockton and as to the revenue that might be derived by the City of Stockton from the sale of the energy contained in the impounded waters for power purposes not having been made the subject of a motion to strike out. are not considered herein, but this does not obviate the errors in the admission of testimony covering practically the same subjects over the objection of appellant, as elsewhere referred to in this case.

Both parties to this controversy place reliance upon the opinion in the second appeal of the case of San Diego Land etc. Co. v. Neale, 88 Cal. 50 [ 11 L. R. A. 604 , 25 Pac. 977 ]. This case has been considered in subsequent decisions of the supreme court, notably in Sacramento etc. R. R. Co. v. Heilbron, 156 Cal. 408 [ 104 Pac. 979 ]. The court, in the Neale case, thus sets forth its views of the law applicable to situations such as are presented here:

“The cost of works necessary for the utilization of the land for reservoir purposes was an element in the calculation as conjectural and speculative as would be the cost of a railroad and running stock necessary for the operation thereof in fixing the value of land condemned for railroad purposes. The quality and condition of the lands to be affected was as foreign to a legitimate estimate of the market value of the land as the size and growth of a city on the line of the railroad would be in fixing the value of land taken for railroad purposes. The necessities of the public are never taken into consideration in fixing the value. They are an element which must be proved before the land can be taken, but are never an element of the question as to compensation. The proportion which the defendants’ lands bore to the remainder of the plaintiff’s reservoir, and the quantity of water which would be stored by use of the de

fendants’ land in connection with the land of plaintiff, and the value of the water as a salable commodity, were clearly improper elements to be considered. (Tide W. Canal Co. v. Archer, 9 Gill & J. (Md.) 481, and other cases.)

“The question was, not what the property was worth to a person intending to acquire it and the dam site and the remainder of the reservoir by purchase or condemnation for the purpose of supplying water over a territory tributary to the system, but what was the market value of the property itself. In other words, what the defendants could have obtained for their land if it had been offered for sale in the market, a reasonable time being given within which to make the sale. The plaintiff must compete in the market with bona fide purchasers generally, but its necessities cannot be taken advantage of. So far as the value of the land in controversy may have been increased to purchasers generally by the construction and use of the plaintiff’s dam and reservoir, or as a part of the entire reservoir site, such fact should be considered, but the value of the land when used in connection with the plaintiff’s land cannot be taken as a criterion, for this would be taking the value to the plaintiff as the measure of compensation. The jury had a right to consider the fact, in determining the market value, that the land in controversy was in proximity to a dam site, and to consider its adaptability for reservoir purposes, and to determine whether or not its market value had been enhanced by improvements put upon adjoining property; but for the reasons stated its adaptability for reservoir purposes should not have been considered ‘in connection with such dam site and other adjacent lands.’ . . .

“It is sufficient to say that any facts showing the nature of the land in controversy, and its adaptability for reservoir purposes, may be shown. The area of the water-shed and amount of water were matters proper to be considered; for a reservoir would be useless without water. That there was land irrigable from the reservoir, and cities and towns which were being supplied with water from wells, were matters not only tending to show that it was a practical reservoir site, but bearing directly upon its value. The condition of the property, the uses to which it may be put, having regard to the existing advantages for making a practical use of the property, and such advantages as may

be reasonably expected in the immediate future, are all matters for consideration in estimating the value of the lands (Boom Company v. Patterson, 98 U. S. 403 [ 25 L. Ed. 206 ]); but to attempt to ascertain the value by estimating the cost of works necessary for its use for a particular purpose, the cost of operation, prospective sales and estimated profits, increased demands through growth of population, etc., requires ‘a degree of refinement in the measure of values which seem to us totally incompatible with the gross estimates of common life. . . . The gross estimates of common life are all that courts and juries have skill enough to use as a measure of value. All other measures are necessarily arbitrary and fanciful. ’ (Searle v. Lackawana & B. R. Co., 33 Pa. St. 64 .)”

In the Heilbron case, after a review of a number of the preceding authorities and of the opinions in the Neale case, the law applicable is thus stated:

“The 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. There is nothing in the Neale case indicating a different rule. The availability of the property for any particular use may be shown, and in the present case all the facts bearing on the use to which the building was adapted and for which it was being used were shown. It is seen, therefore, that this court by its latest utterances had definitively aligned itself with the great majority of the courts in holding that damages must be measured by the market value of the land at the time it is taken, that the test is not the value for a special purpose, but the fair market value of the land in view of all the purposes to which it is naturally adapted; that therefore while evidence that it is ‘valuable’ for this or that or another purpose may always be given and should be freely received, the value in terms of money, the price, which one or another witness may think the land would bring for this or that or the other specific purpose is not -admissible as an element in determining that market value. For such evidence opens wide the door to unlimited vagaries and speculations concerning problematical prices which might under possible contingencies be paid for the land, and distracts the mind of the jury from the single question—-that of market value—■ the highest sum which the property is worth to persons

generally, a purchasing in the open market in consideration o£ the land’s adaptability for any proven use.”

A reference to the testimony which we have heretofore set forth and the predicate contained in the questions asked, as well as the answers of the witnesses, show that their estimated market value of the land was really an estimate of what they thought the land was worth for a specific purpose. The two purposes were set out and the statement incorporated in the question propounded to the witnesses relative to market value. [9] The opinion in the Neale case shows “that the necessities of the public are never taken into consideration in fixing the value.” [10] The necessities of the City of Stockton were presented to the jury in this case, as shown by the testimony, relative to its water supply, as hereinbefore set forth. Likewise, the growth of the City of Stockton is a subject held inadmissible by the Neale case. [11] The Heilbron case is directly in point in holding that the value in use of the land sought to be condemned is inadmissible. The reports which were admitted in this case set forth the value in use, as we have heretofore shown. [12] As said in the concurring opinion of Justice Harrison in Spring Valley W. W. v. Drinkhouse, 92 Cal. 528 [ 28 Pac. 681 ], the land “may be adapted for a reservoir site, but its value for such purpose would be qualified by the prospect, greater or less, of anyone seeking to build such a reservoir. Its market value is affected by such contingency, but it is not to be determined by the fact that the party seeking to condemn it has already determined to build a reservoir. To allow that element to enter into the computation would be to make the plaintiff’s necessity the owner’s opportunity.”

[13] Excluding the Ashburner report and the Barnes report and the elimination of the speculative parts of the testimony given by the experts, to which we have herein specifically referred, we do not find anything in the record in this case which violates the rule laid down by the supreme court in the Neale case as limited and applied by the Heilbron case. The fact that there was a watershed upon the Calaveras River capable of affording a run-off of rain-water sufficient to fill a reservoir containing 350,000 acre-feet of water, that there were lands susceptible of irrigation lying within a reasonable distance of the reservoir site and also

[16] The Black case, supra, is also authority for the proposition that adaptability of a defendant’s land for reservoir purposes may be taken into consideration, although his land alone does not constitute an entire reservoir site and a complete reservoir site requires the joining of his land to a number of other tracts of land belonging to different owners. The record in this case shows that the lands included within the proposed reservoir site are owned by at least thirty-two different persons, but we do not find in the transcript anything further that would lead to the declaration, as a matter of law, that it is impracticable to join all of the lands with the lands of the defendant to form such reservoir. In the case of Medina Valley Irr. Co. v. Seekatz, 237 Fed. 805 [ 151 C. C. A. 47 ], the court, in its opinion, sets forth an apparently contradictory ruling. It was there said: “The defendant was entitled to be paid the value of his land as it was held and owned by him, but was not entitled to a proportion of an advance in value of a much larger tract due to a union of his land with the lands of a number of other proprietors. The contest in this case was enough to show that it was not to be assumed that it was reasonably

[19] We do not think it necessary to go into the question of alleged errors by the court in permitting hypothetical questions to be answered where the questions simply set forth as a basis the hearing of testimony of other witnesses by the expert, and upon whose testimony the opinions were based, further than to say that the better practice is to set forth in the hypothetical question the facts upon which it is sought to illustrate the opinion of the witness being examined. In other words, if error has been committed in this particular, it is not sufficient, in and of itself, to warrant reversal.

[20] Our attention has been called to section 4% of article VI of the state constitution, in support of the verdict rendered by the jury. It is set forth that the jury must

The errors set forth necessitate a reversal. [21] Under the law a land owner is entitled to the full value of his land, when finally ascertained, exclusive of costs. For that reason costs on appeal herein must be charged to the appellant.

It is hereby ordered that the judgment herein be and the same is hereby reversed and the respondent will have and recover his costs on appeal.

Finch, P. J., and Hart, J., concurred.

A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 2, 1926.