Southern Pacific Railroad v. Hart

SMITH, J.

This is a proceeding to condemn a piece of land of the defendants constituting part of a quarter block of land in the city of Santa Barbara, bounded on the northwest by Mason and on the southwest by Anacapa street. The diag

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onals of the block lie north and south and east and west. The land sought to be condemned is a small triangular piece taken from the north corner of the defendants’ land. On the trial the witness Spader, called by the defendants as an expert witness, testified that the value of the property fronting on Mason street was about $12 a front foot; and he further testified, in effect, that the only way to subdivide the block for residence purposes would be to lay off two lots of fifty-foot front on Mason street, extending through the tract, and to subdivide the balance of the quarter block into three lots of fifty and one of seventy-five feet fronting on Anacapa street; that, after the taking of the land sought to be condemned, the block could be subdivided only into the four lots fronting on Anacapa street; that in the former case the land would be worth $4,500 and in the latter $3,500 only; and that the balance of the land not taken by the plaintiff would thus be diminished in value $1,000. Other witnesses of the defendants testified, in effect, that the defendants’ land was best adapted for subdivision for small residences, and they also testified generally “as to the value of the piece taken and to the damage to the part not taken.” On the other hand, the plaintiff introduced testimony to the effect that the quarter block could be more advantageously subdivided by opening a street through the block between the quarter block in question and the quarter block lying to the northeast of it, half of the street to be taken from the land of the defendants and half from other parties.

On this evidence (which is all that is material to this appeal) the jury were rightly instructed, at the instance of the defendants, that they were to determine in this case “the value of the property taken by the railroad and the damage to the remainder of the property owned by the defendants. ’ ’ But at the instance of the plaintiff the jury were instructed: “If you believe that there is a preponderance of evidence that the defendants’ land can be more profitably used for residence than business property, then you must determine upon the evidence the size, shape and arrangement of the lots into which it may most profitably be divided for that purpose, and then, after finding the market value of the part or parts taken from any such lot or lots, you must find the damage to the remainder or remainders of this lot or these lots caused