by the deceased toward the father, and coming to the knowledge of the son, and his conduct and demeanor toward him, were important as showing whether the boy had reasonable grounds to believe the deceased was making a deadly assault upon his father, and would kill him or do him great bodily harm unless by some summary means he was prevented. It was error to reject the testimony as to who was the aggressor in this previous difficulty, and what demonstrations were made on that occasion by deceased, especially if they were seen or came to defendant's knowledge.

We do not mean to in any way justify or excuse the defendant for going armed contrary to law. It was an offense to have a pistol upon this occasion, as he did, and for that he might have been punished. But the offense of going armed is one entirely different from the crime committed by using the pistol in an assault upon another, and it is only for 39 this latter offense the defendant is on trial before us. The carrying of the pistol is important in this case only as bearing upon the question of malice, but the record fully shows that defendant was not wearing it with any expectation of using it in committing any assault, and none that he was wearing it with the purpose of using it on the deceased. It was a boyish indiscretion of which, unfortunately, too many young men are guilty.

The judgment is reversed, and cause remanded for new trial.

HOMICIDE · RIGHT TO DEFEND LIFE OF ANOTHER. Whatever one may do in his own defense, another may do for him, even to killing, if he believes life is in immediate danger, or if such danger and necessity be reasonably apparent, provided the party in whose defense he acts is not in fault: Stanley v. Commonwealth, 86 Ky. 440, 9 Am. St. Rep. 305; Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370. One may take life in defense of his wife, when she is being assaulted and beaten: Estep v. Commonwealth. 86 Ky. 39, 9 Am. St. Rep. 260; so may a man in defense of his daughter kill her husband: Campbell v. Commonwealth, 88 Ky. 402, 21 Am. St. Rep. 348.

HOMICIDE-EVIDENCE OF PREVIOUS VIOLENCE.-Where a man, in defending his daughter, kills her husband, evidence of the husband's former acts of violence toward his wife is admissible in establishing self-defense: Campbell v. Commonwealth, 88 Ky. 402, 21 Am. St. Rep. 348. The threats and bad character of the deceased are admissible where the defendant sets up self-defense: Note to State v. Turner, 13 Am. St. Rep. 710, 711.

MCKINNEY V. NASHVILLE.

[102 TENNESSEE, 131.]

EMINENT DOMAIN-MEASURE OF DAMAGES.-In estimating the value of property taken for a public use, it is the market value which is to be considered, and, in estimating such value, all of the capabilites of the property and all of the legitimate uses to which it may be applied or for which it is adapted are to be considered, and not merely the condition it is in and the use to which it is at the time applied by the owner.

EMINENT DOMAIN-MEASURE OF DAMAGES UNLAWFUL USE.-If, in estimating the value of property taken for a public use, it is shown that its rental value has been inflated by an unlawful use, such rental value, to the extent of the inflation, must be discarded as evidence of the value of the property.

E. H. East, for the appellant.

Price & McConnico, for the appellee.

181 BEARD, J. This is a condemnation proceeding instituted by the municipal authorities of Nashville. 182 The right to condemn the property in question is conceded by its owner, the plaintiff in error; the controversy is as to the rule for ascertaining value submitted by the trial judge. In his charge to the jury he said: "In considering the uses for which the property was adapted, you must consider all legitimate purposes for which it may be used, and must not confine yourselves to any one special or particular use as going to indicate its value." And again: "You will consider its location and publicity, its situation with reference to the Public Square and Deaderick street, and its vicinity to other property used for business or other purposes. You will also consider the adaptability of the property to any and all legitimate purposes to which it might be applied and its rental value for any and all such legitimate purposes, as well as other elements of value developed by the proof," in fixing the compensation to which the owner of the property was entitled upon its appropriation to a public use.

The record disclosed that this property was more valuable, by reason of location, for saloon purposes than any other, and that at the time of the institution of the present proceedings it was under lease for a term of five years for a good annual rental, and was then used to carry on a saloon business. In view of this condition, the contention of plaintiff in error is best stated in the words of his counsel, taken from his brief and argument, which are as follows: "If a saloon-keeper, because of the location 183 of property, its adaptability to his intended

uses, will give more for it than another whose occupation is different can afford or will give, looking to his intended use for it, why should the owner not receive the highest value which anyone would give for the property? I do not mean this highest value for one use should be considered in connection with its value for other uses in order to diminish its value, but that it constitutes its value is its value in the market." And again: "Instead of saying to the jury you must consider all legitimate purposes for which it might be used, he should either have said to the jury the owner has a right to its value for the use for which it would bring the most in the market, or that they should value the property on the basis of its most valuable use."

These paragraphs, taken from the instructions of the trial judge and the argument of the counsel criticising them, present sharply the issue on this point which is presented for our determination. On this issue we do not hesitate to approve the charge of the trial judge.

Lewis, in his work on Eminent Domain, section 478, says: "In estimating the value of property taken for public use, it is the market value of the property which is to be considered. The market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity of having it. In estimating its 134 value, all the capabilities of the property and all the uses to which it may be applied or for which it is adapted are to be considered, and not merely the condition it is in at the time and the use to which it is applied by the owner." To this text many cases are cited by the author. One of these cases is Mississippi Bridge Co. v. Ring, 58 Mo. 491, in which the court say: "The correct rule to be applied relates to the value of the land to be appropriated, which is to be assessed with reference to what it is worth for sale in view of the uses to which it may be put, and not simply in reference to its productiveness to the owner in the condition in which he has seen fit to have it."

Nor do we find the authorities relied upon by plaintiff in error to support his contention out of line with the rule thus announced, with one possible exception. We will now examine these authorities.

In Chicago etc. R. R. Co. v. Jacobs, 110 Ill. 414, the trial court had said to the jury, as is insisted should have been done in this case, "that the owner of property to be condemned is entitled to its actual value for its highest or best use to which

the property could be put, and in case" it "has an actual value for a specified use, and that such property is devoted and adapted to such use, then the owner is entitled to such value." On appeal, this was held to be error, and the supreme court said: "The jury should have been instructed in such a way that they would look to the market value 135 of the property. But the instruction opens up a wider field of investigation. It was a fair invitation to the jury to enter into another field of inquiry as to the value of the lots-to ignore the market value and determine the actual value for a specified use." The case was, therefore, reversed for this error of the trial judge.

We think this statement of that case shows it to be in the face of the insistence of plaintiff in error and places it in line with the text of Mr. Lewis.

The case of Gardner v. Brookline, 127 Mass. 358, so far as we can see, does not shed any light on this question; but the case of Johnson v. Freeport etc. Ry. Co., 111 Ill. 414, seems to furnish authority for the contention of plaintiff in error. In that case, upon the trial below, the court had excluded evidence, offered by the owner of the property which it was sought to have condemned, that it had a special value for railroad purposes-and it was for these purposes condemnation was soughtbeyond its general market value. The supreme court held this ruling to be error, and say: "If property has a special value, from whatever cause, that value belongs to the owner, and he is entitled to be paid for it by the party seeking compensation."

The opinion in this case was delivered at the November term, 1884, by the court, composed of the same judges which announced the opinion in the case of Chicago etc. R. R. Co. v. Jacobs, 110 Ill. 414, 136 at the immediately preceding spring term. It is hardly to be supposed this latter case was overlooked, and yet it is not mentioned in that opinion. Nor do we believe it was intended to overrule it sub silentio, and establish a new general rule. On the contrary, we are satisfied, from the description of the property found in the opinion, that it was a strip of ground valuable largely, if not exclusively, for railroad purposes, and therefore without any general market value, and that the court simply intended to protect this exceptional property to the owner by applying a measure of compensation which gave to the owner the full equivalent of this exceptional use. If this be the interpretation, then it is in harmony with a number of other cases, and it does not conflict with the general rule as to market value.

Plaintiff in error relies also upon the statement of Mr. Randolph, in his law of Eminent Domain, section 249, that "the property must be valued at its most profitable use." To this text the author cites alone the case of Goodin v. Cincinnati etc. Canal Co., 18 Ohio St. 169, 98 Am. Dec. 95. The opinion in that case does not support the author's text, at least as it is interpreted by the plaintiff in error. The court say there: "The true value of anything is what it is worth when applied to its natural and legitimate uses its best and most valuable uses. The estimate should have been of its value generally for any and all uses, and not for any particular, 137 and especially not for any inferior or inappropriate use." Thus stated, we see no divergence from the rule as stated by Mr. Lewis.

Plaintiff in error also relies on a statement taken from the text of Mills on Eminent Domain, page 168, to the effect that "the owner has a right to its [property's] value for the use for which it would bring the most in the market." While this is embodied in the text, yet it is taken literally from the opinion in King v. Minneapolis Co., 32 Minn. 224, the case which the author cites in support.

In that case, the property sought for condemnation had upon it a manufacturing establishment which was in operation, and the error alleged was that the trial court had improperly let in evidence of that fact. The court held that this was not error, and say that the owner "is entitled to the value of his property for any use to which it may be applied and for which it would ordinarily sell in the market. It is, we think, equally true that any evidence is competent and any fact is proper to be considered which legitimately bears upon the question of the marketable value of the property. In this case, evidence was introduced tending to prove that the fact of a business having been established and carried on on the premises for so long a time, materially increased the market value of the property." It is in this connection the sentence already quoted occurred, and the court further along, as well as in the paragraph just given, show clearly 188 that their only meaning in the use of this sentence is that evidence of this special valuable use is competent to go to the jury, in order to enable them to estimate the fair market value of the property. This case is clearly in line with the rule as heretofore taken from Lewis on Eminent Domain.

We have devoted this much time to the examination of the authorities relied on by the counsel for the plaintiff in error,