of actual sales of neighboring property is admissible.1 In New Hampshire, it may be shown what the railroad condemning has paid for other land in the vicinity, and what has been received at an administrator's sale of an undivided interest. The value of an undivided interest is less certain than a separate interest, but is an approximation. In determining what sales shall be admissible as evidence of value, much is in the discretion of the court as to how recent in time or how adjacent in place the sales must have been. Sales of land the year previous may be rejected, as too remote in point of time to have any material bearing." In case of wild or undesirable lands, such as flats or islands, sales from eight years to one year before, and from one to six miles distant, may be admitted, in the absence of more recent sales. Evidence of the value of ice-privileges on ponds seven or eight miles distant has been rejected.' A sale seventeen years back may be proved, and the changes in value may be brought out on cross-examination.8 Cross-examination should bring out the reasons why purchasers may have given prices greater than the real value." The rule as to town lots would be different from that applied to vacant or wild lots. In estimating the value of a vacant lot, evidence is not admissible to show the value of an improved estate, when it appears that the sum was a gross sum, not only for land taken, but also for damages to the entire estate.10 The price given on an award by arbitrators is not admissible."

1 Shattuck v. Stoneham R. R., 6 Allen, 115; Edmands v. Boston, 108 Mass. 535; Moale v. Baltimore, 5 Md. 314.

2 Concord R. R. v. Greely, 23 N. H. 237.

8 March v. Portsmouth R. R., 19 N. H. 372.

4 Ham v. Salem, 100 Mass. 350; Paine v. Boston, 4 Allen, 168; Montclair R.

R. v. Benson, 36 N. J. L. 557; Chandler v. Jamaica Pond Co., 122 Mass. 305.

5 Green v. Fall River, 113 Mass. 262.

6 Benham v. Dunbar, 103 Mass. 365.

Ham v. Salem, 100 Mass. 350.

8 Whitman v. Boston R. R., 7 Allen, 313.

9 Wyman v.

R., 3 Allen, 142.

Lexington R. R., 13 Metc. 316; Boston R. R. v. Old Colony R.

10 Presbrey v. Old Colony R. R., 103 Mass. 1.

11 White v. Fitchburg R. R., 4 Cush. 440.

The consideration paid in a deed of purchase recently made may be admitted, as tending to enlighten the jury.1 The price paid for right of way through adjoining tracts is not admissible, unless uniformity of the land is first shown." Evidence of the value of a lot is inadmissible from the sale of a lot one thousand feet off, and in another town, similar only in that they were both low land and traversed by brook, but dissimilar in respect of access by streets, of nearness to other houses, and of likelihood of coming into market, and in that the sale was made three years before, and in the meantime there had been a general advance in the value of lands in both towns. The difference in value may be shown by sales of other property similarly situated, before and after the construction of the road, or by the difference in rental value, if held for the purpose of renting. If there have been no sales, then the effect on the property may be shown, to aid the jury.

§ 171. Rents of similar property. In considering the value of a leasehold, it is within the discretion of the court to permit a witness who underlets rooms in the vicinity, and who, for this purpose, has informed himself generally of the rents of buildings, to give an opinion, although he has not examined the building in question; or, when a part of the building is taken, to show the present rental value of the building.

§ 172. Evidence of assessment for taxation Of commissioners' report - Admissions of owner. The valuation made by the assessor, for purposes of taxation, is not admissible in evidence, the determination of value having

1 Jones v. Chicago R. R., 68 Ill. 380.

2 King v. Iowa Midland R. R., 34 Iowa, 458.

Chandler v. Jamaica Pond Co., 122 Mass. 305.

St. Louis R. R. v. Haller, 82 Ill. 208.

5 Lawrence v. Boston, 119 Mass. 126. Edmands v. Boston, 108 Mass. 535.

been made for a different purpose. Nor is the return made by the owner conclusive upon him, but is, perhaps, admissible to contradict his evidence in chief.2

The estimate of damages made by commissioners in their report, which report also directed the railroad company to maintain a way, is admissible before a sheriff's jury, in estimating damages. The report is proper evidence of the value found by the commissioners, especially in case of a suit on the award."

In fixing the value of lands taken, the owner's acts and declarations may be shown, as a means of fixing the value of the property, as, that he had offered it for a certain price, and had sold a portion at the same rate."

§ 173. Value not estimated solely from present use. Property which may be valuable for some uses, and adapted to such uses, may not at the time of condemnation be devoted to such uses. To confine the estimate of the value of property to the present value, as determined from present income, would be unfair. That would prevent the owner from making a change in his business. The correct rule is the value of the property for sale, in view of the uses to which it may be put, and not simply its productiveness to the owner in the condition in which he has seen fit to leave it. The value should be based on the uses to which men of ordinary prudence, economy, and wisdom would devote the property, if it was their own property. Prospective

1 Brown v. Providence R. R., 5 Gray, 35.

2 Virginia R. R. v. Henry, 8 Nev. 165.

White v. Boston R. R., 6 Cush. 420.

St. Joseph R. R. v. Orr, 8 Kan. 419; Missouri R. R. v. Owen, 8 Kan. 409. Fiske v. Chesterfield, 14 N. H. 240.

• East Brandywine R. R. v. Ranck, 78 Pa. 454.

7 Mississippi River Bridge v Ring, 58 Mo. 491; Burt v. Wigglesworth, 117 Mass. 302; Matter of Furman St., 17 Wend. 649; Somerville R. R. v. Doughty, 22 N. J. L. 495: Dorlan v. East Brandywine R. R., 46 Pa. 520; Haslam . Galena R. R., 64 Ill. 353; Regina v. Brown, 36 L. J. (Q. B.) 322. 8 Dwight v. Hampden, 11 Cush. 201; Matter of Furman St., 17 Wend.

improvements cannot be shown,-as, that the rental value of the land, with a suitable and proper building upon it, would be a certain sum, or that the city council contemplated making improvements which would benefit and enhance the value of the property in question. So far as the market value was in fact affected by the knowledge of what was to be done, or of what was contemplated, the owner was entitled to it. The evidence is not competent, as independent evidence, to show what the market value was.' The jury may take into account the profitable uses to which the land might be applied on account of its proximity to the stations of two great lines of railroad terminating at tide-water.3 Evidence may be given that the property taken was in demand for the purpose of erecting shops of a certain size; but on cross-examination it may be shown that the shops on the land taken were not of the size claimed to be in demand.* Surplus water-power should be valued at its actual market value, not what it would be worth if new mills and machinery were erected to employ it." The value of the land if a wharf was erected cannot be shown in the condemnation of the same land for a wharf;" or the value if a franchise could be obtained from the state; or if devoted to the pork-packing business; or if otherwise improved. Evidence is not admissible to prove the value for manufacturing

8

649; Matter of New York Central R. R., 13 N. Y. Sup. Ct. 149; Shenango R. R. v. Brahám, 79 Pa. 447; Schuylkill Co. v. Thoburn, 7 Serg. & R. 411; Harrison v. Young, 9 Ga. 359.

1 Burt v. Wigglesworth, 117 Mass. 302.

2 Cobb v. Boston, 112 Mass. 181; William and Anthony Sts., 19 Wend. 678; Matter of Furman St., 17 Wend. 649.

3 Eastern R. R. v. Boston R. R., 111 Mass. 125; Boston R. R. v. Old Colony R. R., 12 Cush. 605.

Whitney v. Boston, 98 Mass. 312.

Dorlan v. East Brandywine R. R., 46 Pa. 520; Selma R. R. v. Keith, 53 Ga. 178.

Eddings v. Seabrook, 12 Rich. L. 504.

Central Pacific R. R. v. Pearson, 35 Cal. 247.

8 Selma R. R. v. Keith, 53 Ga. 178.

• Fleming v. Chicago R. R., 34 Iowa, 353.

6

purposes of a building abandoned for a factory and used as a tenement-house.1 Timber-land cannot be valued as tillable land, on the ground that it would cost the worth of the timber to render it tillable. This would deprive the owner of the value of the timber, which he is under no obligation to remove. The witness may be asked for what purposes the land was valued, and it may be shown that it was valued for other purposes. It is not allowable to ask the owner what would be his probable future use of his land, or to what purposes it was adapted. The proposed use by the condemning party may be shown for the purpose of lessening damages. Such use might make the land undesirable for residence purposes, yet the condemning party might show, in rebuttal, that it was rendered much more valuable for warehouse purposes. The existence, on the land, of mines or water-power, unutilized, would affect the market value. The fact that the land taken was the only available site for a bridge gives it a value greater than its agricultural value, and it must be so estimated. The present use may be the only use to which the property could be put, — as in case of land conveyed, with limitations, to a religious congregation. The damages would be to the land for the use to which it was devoted.10 The corporation condemning may have a special privilege of erecting works, which privi

1 New Britain v. Sargent, 42 Conn. 137.

2 Rider v. Striker, 63 N. Y. 136.

3 Colvill v. St. Paul R. R., 19 Minn. 283.

Fairbanks v. Fitchburg R. R., 110 Mass. 224; Pinkham v. Chelmsford, 109 Mass. 225.

5 Conter v. St. Paul R. R., 22 Minn. 342.

• Dickenson v. Fitchburg, 13 Gray, 546.

Mix v. Lafayette R. R., 67 Ill. 319.

Haslam v. Galena R. R., 64 Ill. 353.

Young v. Harrison, 17 Ga. 30; Harrison v. Young, 9 Ga. 359.

10 First Parish v. Middlesex, 7 Gray, 106; Matter of Albany St., 11 Wend. 149. If land devoted to consecrated purposes is taken, and devoted to secular purposes, the English rule would require compensation according to its value for secular purposes. Hilcoat v. Archbishops of Canterbury and York, 19 L. J. (C. P.) 376; Re Burial Ground of St. Pancras, 36 L. J. (Ch.) 52.