Opinion of the Court-Walters, District Judge.

in favor of the plaintiff, and made answers to interrogatories in each instance favorable to the contention of the plaintiff. The defendant brings this action here for review upon ten assignments of error, the first nine of which urge that the court erred in overruling the defendant's objection to some several questions on the ground that the same were incompetent, immaterial and irrelevant; were not proper rebuttal, or were not proper cross-examination.

(1) The record discloses that this action consumed five days for trial and that twenty-two witnesses were called and testified, the greater number of them being returned to the stand more than once, the transcript of the testimony being over six hundred pages in volume. From the length of time occupied in trying the case and the number of witnesses called, it may readily be seen that it would be quite extraordinary if erroneous rulings of the trial court upon some several questions on the ground that the same were incompetent, immaterial and irrelevant, or not proper rebuttal or proper crossexamination, would constitute reversible error, such as to authorize or justify the judgment being disturbed, where no controlling principle of law was involved. Counsel for appellant, however, concede that the law of the case as announced and invoked by the trial court was correct.

We can note no error in the particulars assigned sufficient to authorize or require a reversal of this judgment, for if there is any error in the rulings questioned it is but purely technical, and in no sense and no manner prejudicial, and at most can only be such harmless or technical error as abounds in every trial of some considerable length which is vigorously, and oftentimes blunderingly, contested. This court is admonished by sec. 4231 of the Revised Codes that no judgment shall be reversed or affected by reason of errors or defects which do not affect the substantial rights of the parties.

(2) It is further lastly urged by counsel for appellant in assignment of error No. 10 that the verdict and findings of the jury were not in accordance with the evidence. It may in short be said that there is very substantial evidence

Points Decided.

to support the verdict and findings of the jury and the judg ment duly entered herein, and that in accordance with the provisions of sec. 4824 of the Revised Codes requiring "that whenever there is substantial evidence to support a verdict the same shall not be set aside," the judgment entered herein. should not be set aside and is hereby affirmed.

Costs are awarded to respondent.

Ailshie, C. J., and Sullivan, J., concur.

(May 8, 1914.)

RAWSON-WORKS LUMBER CO., a Corporation, Appellant, v. WALKER RICHARDSON et al., Respondents.

[141 Pac. 74.]

EMINENT DOMAIN-CONDEMNATION OF LAND-PUBLIC USE-MEASURE OF VALUE-COMPENSATION -EVIDENCE- INCOMPETENT MEASURE OF

DAMAGES INSTRUCTIONS.

1. Held, that it was error for the court to admit evidence showing the value to the appellant of the land to be condemned, since such valuation is not based on the market value of the land but on the necessities of appellant.

2. Compensation for the land taken in such cases must be reckoned from the standpoint of what the land owner loses by having his property taken and not from the benefit the property may be to the party desiring to take it, and it is error to admit evidence of the necessities of the condemnor and the value of the property to him for the purpose to which he intends to apply it.

3. Held, that the court erred in giving certain instructions. 4. Held, that the court erred in refusing to give certain instructions requested by the plaintiff.

APPEAL from the District Court of the Second Judicial District, in and for Idaho County. Hon. Edgar C. Steele, Judge.

Argument for Appellant.

Action under the eminent domain statutes of the state for the condemnation of certain lands for public use. Judgment for the defendants. Reversed.

G. W. Tannahill, for Appellant.

Under the provisions of our statutes, the public acquired an easement over the land in question and embraced in the streets and alleys; the defendants did not own the feesimple title thereto, but, notwithstanding this fact, the defendants were awarded the full price for the same, or a value equal to the lots and blocks. The instruction of the court and the evidence admitted relative to the value of the streets and alleys and the acreage therein was error. (In re Lawrence Street, 136 N. Y. Supp. 845; In re Titus Street, 152 App. Div. 752, 137 N. Y. Supp. 817.)

"Compensation must be reckoned from the standpoint of what the land owner loses by having his property taken, not by the benefit which the property may be to the other party to the proceedings." (15 Cyc. 757; 2 Lewis on Eminent Domain, 3d ed., p. 1231; Black River etc. R. R. Co. v. Barnard, 9 Hun (N. Y.), 104; In re Boston Hoosac Tunnel etc. Ry. Co., 22 Hun (N. Y.), 176; In re New York, Lackawanna & W. Ry. Co., 27 Hun (N. Y.), 116; Sullivan v. Board of Supervisors of Lafayette Co., 61 Miss. 271; Five Tracts of Land v. United States, 101 Fed. 661, 41 C. C. A. 580; San Antonio & A. P. Ry. Co. v. Southwestern Tel. etc. Co. (Tex. Civ. App.), 56 S. W. 201; Virginia & Truckee R. Co. v. Elliott, 5 Nev. 358; Providence etc. R. R. Co. v. City, 155 Mass. 35, 29 N. E. 56; Union Depot etc. Co. v. Brunswick, 31 Minn. 297, 47 Am. Rep. 789, 17 N. W. 626; St. Louis etc. Ry. Co. v. Knapp, Stout & Co., 160 Mo. 396, 61 S. W. 300; Ligare v. Chicago etc. Ry. Co., 166 Ill. 249, 46 N. E. 803; West Virginia etc. Ry. Co. v. Gibson, 94 Ky. 234, 21 S. W. 1055; Chicago B. & Q. Ry. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979; San Pedro etc. Ry. Co. v. Board of Education, 35 Utah, 13, 99 Pac. 263; Selma, Rome & D. R. R. Co. v. Keith, 53 Ga. 178; Oregon R. & Navigation Co.

Argument for Respondents.

v. Taffe, 67 Or. 102, 134 Pac. 1024; Portneuf-Marsh Valley Irr. Co. v. Portneuf Irr. Co., 19 Ida. 483, 114 Pac. 19.)

W. N. Scales and McNamee & Harn, for Respondent Richardson.

It was not error for respondents to be allowed to show by either direct or cross-examination of witnesses that the lands sought to be condemned were more valuable for mill sites or terminal grounds than for any other purpose, or to show special value of the property for the purposes for which it is taken. This rule is permissible in aiding the jury to arrive at its market value. (Spring Valley Waterworks v. Drinkhouse, 92 Cal. 528, 28 Pac. 681; San Diego Land & Town Co. v. Neale, 78 Cal. 63, 20 Pac. 372, 3 L. R. A. 83; Mississippi & R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206; Sargent v. Inhabitants of Merrimac, 196 Mass. 171, 124 Am. St. 528, 81 N. E. 970, 11 L. R. A., N. S., 996, and note; McGovern v. City of New York, 229 U. S. 363, 33 Sup. Ct. 876, 57 L. ed. 1228, 46 L. R. A., N. S., 391; Oregon R. & Nav. Co. v. Taffe, 67 Or. 102, 134 Pac. 1024; Sacramento Southern R. Co. v. Heilbron, 156 Cal. 408, 104 Pac. 979; United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 33 Sup. Ct. 667, 57 L. ed. 1063; Columbia etc. Rafting Co. v. Hutchinson, 56 Wash. 323, 105 Pac. 636.)

Upon the lawful vacation of a street, the abutting land owner holds the fee presumably to the center line, discharged from all easements, either in favor of the public or other abutting owners. (Lamm v. Chicago St. P. M. & O. Ry. Co., 45 Minn. 71, 47 N. W. 455, 10 L. R. A. 268.)

For exhaustive discussion of abutter's right in streets, see notes to Rasch v. Nassau Electric R. Co., 36 L. R. A., N. S., 673, 838.

A. S. Hardy, for Respondent Wagner.

"The general rule is that if evidence erroneously admitted during the progress of a trial be distinctly withdrawn by the court, the error is cured." (38 Cyc. 1440, 1630; McDannald

Opinion of the Court-Sullivan, J.

v. Washington etc. R. R. Co., 31 Wash. 585, 72 Pac. 481; Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. ed. 141.)

Any adaptability of lands for any purpose, whether previously used for such purpose or not, is to be taken into consideration in fixing the market value. (Portneuf-Marsh Valley Irr. Co. v. Portneuf Irr. Co., 19 Ida. 483, 114 Pac. 19; 15 Cyc. 757; San Diego Land etc. Co. v. Neale, 78 Cal. 63, 20 Pac. 372, 3 L. R. A. 83; Mississippi & R. R. Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206; Little Rock Junction Ry. Co. v. Woodruff, 49 Ark. 381, 4 Am. St. 51, 5 S. W. 792; Oregon R. & Nav. Co. v. Taffe, 67 Or. 102, 134 Pac. 1024; In re New York L. etc. Ry. Co., 27 Hun (N. Y.), 116; Currie v. Waverly etc. R. R. Co., 52 N. J. L. 381, 19 Am. St. 452, 20 Atl. 56; Brown v. Forest Water Co., 213 Pa. 440, 62 Atl. 1078; In re Daly, 72 App. Div. 394, 76 N. Y. Supp. 28; Hartshorn v. Illinois Valley Ry. Co., 216 Ill. 392, 75 N. E. 122; Cox v. Philadelphia etc. R. Co., 215 Pa. 506, 114 Am. St. 979, 64 Atl. 729; In re New York W. & B. Ry. Co., 151 App. Div. 50, 135 N. Y. Supp. 234.)

SULLIVAN, J.-This is an action under the eminent domain law of the state. The plaintiff is a lumber manufacturing corporation and has considerable timber land in this state. The entire acreage involved in this proceeding, including the interest owned by the appellant corporation, is 48.53 acres, of which appellant is the owner of 33.01 acres and the defendants of about 15.52 acres.

On the trial the jury awarded the defendants the sum of $6,352, and the court entered judgment for that amount in favor of the respective defendants in accordance with their respective interests in and to said 15.52 acres of land. The appeal is from the judgment.

Counsel for appellant contends that the value of the land fixed by the jury is excessive and that the court erred in the admission of evidence as to the value of the land; in giving certain instructions to the jury and refusing to give certain instructions requested, and in assessing the damages