the assessment was excessive. The defendants did not except at all, and thus impliedly signified their satisfaction with, and acceptance of, the assessment as made. It might have been questioned whether, regularly, the issue raised by the plaintiff's exception to the report ought strictly to have been submitted to a jury; but it might be, certainly, by consent, and this was given, at all events, by implication; there was no objection. Raleigh & A. A. L. R. Co. v. Wicker, 74 N. Car. 220; Carolina Cent. R. Co. v. Phillips, 78 N. Car. 49. Informally, an issue not put in writing was submitted to the jury. What it was does not appear, except by inference. It seems that it was, in substance, "What damage have the defendants sustained?" But this question was not raised by the exception and the state of the record. The inquiry was limited to the question whether or not the assessment was excessive, and, if so, to what extent. If the defendants thought it too small, they should have excepted at the proper time, or afterwards, by permission of The plaintiff's exception did not have the effect to vacate the report and put the question of damages at large. It was sufficient and continued to have force, so far as appears, until, for proper cause, the court should set it aside or modify it in some respect, and it still has effect. the court. The last objection was not made in the court below, but, as the error appears in the record proper of the proceeding, we take notice of and correct it. Thornton v. Brady, 100 N. Car. 38; Hutson v. Sawyer, 104 N. Car. I. The jury have, by their verdict, in effect found that the assessment of damages by the commissioners was not excessive. The judgment must therefore be set aside, and judgment entered in the court below in favor of the defendants for $300. To that end let this opinion be certified to the superior court, according to law. It is so ordered. Eminent Domain-Impairment of Use of Property by Frightening Horses.See ante St. Catharines R. Co. v. Norris, p. 119, note, p. 124. Opinion Evidence as to Value of Land-Competency of Witnesses.-See ante Curtin v. Nittany Val. R. Co., p. 130 and note, p. 136. Injury to Church Property by Location of Railway Works.-See Baltimore & P. R. note 28. Co. 2 v. Fifth Baptist Church, (U. S.), 11 Am. & Eng. R. Cas. 15, SAN JOSE & ALMADEN R. Co. ย. MAYNE. (83 Cal. 566.) Eminent Domain-Evidence as to Value at Date of Trial.-Where by stature the value of the land at the date of the summons is made the measure of damages in condemnation proceedings, it is error to permit a witness to testify as to the value of the land at the date of trial. Evidence as to Benefits-Error not Prejudicial.-Where by the constitution it is forbidden in condemnation proceedings to allow proof of benefits resulting from the building of the railroad, the admission of evidence as to such benefits, and an instruction to the jury to find how much the land would be benefited, is erroneous; but if the jury find that no benefit accrues to the land owner, the error is not prejudicial. Evidence of Value-Assessment Lists. The assessment of property for taxation is not admissible as evidence of its value in condemnation proceedings, nor is the signing of an assessment list by the landowner a declaration by him as to the value of his land. Counsel Fees as Part of Compensation.-A landowner cannot recover the value of the counsel fees paid by him to his attorney as a part of his damages for the taking of his property. Allowance of Damages Inconsistent with Special Findings. In a special finding the jury reported that there was no damage to defendant's land not taken, but in their assessment of damages they allowed for cross-fences, fruit trees and the inconvenience of a curve. Held, that this was inconsistent with the special finding, and should not be allowed. APPEAL from Santa Clara County Superior Court. Hiram D. Tuttle, John Reynolds, and C. D. Wright, for appel lant. J. B. Lamar, for respondent. FOOTE, C.-This action was instituted for the purpose of condemning a right of way for a railroad through the lands of John Mayne, the defendant and appellant. The cause was tried with the intervention of a jury, to whom were referred special issues of fact for determination. Upon the verdict of the jury on the special issues-adopted by the court-judg ment was entered, and a final order of condemnation made by the trial court. The amount of money awarded by the jury as compensation for the land taken, and also that awarded for damages to the land not taken, was paid into court by the plaintiff, and accepted by the defendant upon the following terms: "And I hereby abandon all defense to this action, except as to the amount of damages that I may be entitled to in the event that a new trial shall be granted herein;" signed by the defendant and his attorneys of record. This last proceeding is in accordance with the provisions of section 1254 of the Code of Civil Procedure. A motion for a new trial was made and denied. From the order made in the premises and the judgment the defendant appeals. He claims that the court erred in deciding that the defendant was not entitled to prove the value of the land proposed to be taken at the date of the summons issued in the case. From the transcript it appears that John Ryan, a witness for the plaintiff, was asked what would be a fair price for the defendant's land, taking it all together. He was allowed to answer over the defendant's objection, one of the grounds of which was that the question related to the present value of the land, and not to its value at the date of the summons. The court overruled the objection, on the ground, as stated, that the present value of the land, and not the value at the date of the summons, must be ascertained; to which ruling the defendant excepted. Again, the defendant proposed to prove, by competent evidence, the value of the land proposed to be condemned was at the date of the summons in this case, to which plaintiff objected, on the ground that the present value, and not the value at the date of the summons, must be taken in determining the value by the jury." The court sustained the objection, and the defendant duly excepted. 66 what It appears, therefore, that the question decided was, at what specific time, for the purpose of assessing compensation and damages, the right thereto shall have accrued, and Evidence as to value-Date at what date its actual value shall be proven as a measure of compensation? This contention seems of trial. to be settled by section 1249 of the Code of Civil Procedure, which declares that the right to the assessment of mons, and that the actual value at that date shall be the measure of compensation and damages. This statute was held to be constitutional in California S. R. Co. v. Kimball, 61 Cal. 91. In Tehama Co. v. Bryan, 68 Cal. 57-65, a similar decision was rendered, and the principle determined that the true measure of damages is to be that fixed by the statute, supra. The ruling of the court below, being in opposition to the plain terms of the law above referred to, was erroneous. It is also urged that the witness Spencer was unlawfully iff as to "benefits" which might result to the depermitted by the court to give evidence in favor of the plaintfendant by reason of the location of the railroad on his premises. In this connection it is proper, also, to notice the objection which is made to the fourth instruction given by the court, which is: "The jury must find sepa Evidence as to benefits. rately how much the portion of defendant's said land not sought to be condemned in this action will be benefited, if at all, by the building of the railroad proposed by plaintiff.”’ It was said by the appellate court in Pacific Coast R. Co. v. Porter, 74 Cal. 262, 33 Am. & Eng. R. Cas. 167: “(1) It is argued for the appellant that evidence should have been admitted of the benefits accruing to the remaining land, and that such benefits should have been deducted from the amount of damage assessed. But the constitution expressly provides that no right of way shall be appropriated to the use of any corporation, other than municipal, until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation.' Article 1, § 14. (2) Under this provision, the benefits supposed to result to the remainder of the land cannot be considered. An exception to this is provided when the corporation for whose use property is taken is a municipal corporation.' The cases of Butte Co. 2. Bodyston, 64 Cal. 110, and Tehama Co. v. Byran, 68 Cal. 57, fall within this exception; for, as is well said by respondent's counsel, the word municipal,' as used in the provision, refers to such corporations as are for public government, and therefore includes counties. Unless the cases mentioned proceed upon this ground, we do not see how they can be sustained.” But while it is clear that the evidence admitted was improper, as also the instruction, it appears that the jury, in answer to the question of "benefits" submitted to them, declared there were none accruing to the defendant, so that the error worked no prejudice to him, and the matter is only discussed here in view of the retrial of the cause. as evidence. The court allowed the plaintiff, against the objection of the defendant, (that the same were incompetent and irrelevant,) to introduce in evidence certain statements signed Assessment by the defendant for the years 1884, 85, '86. The assessor who had them in charge, as a witness on the trial, stated: "The deputy who made the assessment fixed the values, and returned the statements with the values as fixed by him, and, if the values fixed by him were not satisfactory, they were changed at the office; and that was the general custom in his office, but he could not remember what was done with reference to these particular statements. The statements were evidently those required under sections. 3629-3633 of the Political Code. Nowhere in them, or in any other sections of that Code which have been called to our attention, is there any provision which requires the person whose property is to be assessed to fix the value thereof. The record here shows that such fixing of value, if made, was by the assessor, and not by the defendant. We cannot, therefore, perceive what relevancy the statements had to the question of value of the land to be taken. They were not in any way declarations by the defendant as to the value of his land, and, even if they have the same force and effect as an assessment roll made by the proper officer, they are inadmissible. "The assessment of property for taxation being made for another purpose, and not at the instance of either party, and not usually at the market value of the property, is not admissible as evidence of value in condemnation proceedings." Lewis, Em. Dom. 448; Texas & St. L. R. Co. v. Eddy, 42 Ark. 527; Brown v. Providence, W. & B. R. Co., 5 Gray (Mass.), 35. Counsel fees. The contention of the defendant that he was entitled to put in evidence the value of counsel fees, and to recover for the same as part of his compensation or damage, is untenable. There is no statute in this state which establishes any such rule. Neither was he entitled to have included in the judgment the sum of $40 allowed by the jury for "cross fences, fruit trees, and inconvenience of the curve," and appended to their answer to the fourth special issue. The jury had determined the special issue by their with findings. verdict, No damage on the east side to lands, Allowance inconsistent and the allowance made after that was not in response to the issue tendered, or in accordance with the finding first quoted, and the court acted properly in not including it in the judgment. No further prejudicial error is shown, but for the reasons heretofore stated we advise that the judgment and order be reversed. We concur: BELCHER, C. C.; VANCLIEF, C. PER CURIAM.-For the reasons given in the foregoing opin. ion the judgment and order are reversed. & M. V. R. Co. v. Meeker, p. 115 and note, p. 118. Consideration of Benefits in Estimating Damages. See ante, Fremont, E. Assessment Lists as Evidence of Value.-See ante, Birmingham Mineral R. Co. v. Smith, p. 148 and note, p. 150. Evidence of Price at Which Land Had Been Offered for Sale.-In Sherlock et al. v. Chicago, B. & Q. R. Co., Ill. Sup. Ct., Nov. 2, 1889, it was held to be erroneous to allow the admission of evidence that the land in controversy had been offered for sale at a certain price, and such error constitutes a cause for reversing the judgment of the lower court where it appears that the flicting. settled reasoning seems to be Mills, Em. Dom. § 170, WILKIN, J., said: "The law and sound again and authorities cited in note; Lewis, Em. Dom. § 446, and cases cited. In inst the admissibility of such evidence. Davis. Charles River B. R. Co., 11 Cush. (Mass.), 44 A. & E. R. Cas.-II 506, the petitioner was |