The court ruled: "If the witness states that he is familiar with the values of properties of this sort, of this kind, although for a particular purpose, I do not think his testimony incompetent. I think if he can say that he is familiar generally with the value of property of this kind, that he may testify." The witness was then asked: "Please state in your opinion what is the value of that combination there, that land and water there. What is the value, the fair market value of this combination of land here with the water power for the purposes of a printing business?" and answered, "I should think that with that amount of land, with that combination of land and water, that fifty thousand dollars would be a very low price for it." The defendant excepted to this question and answer.

The defendant is right in his contention that the damages must be measured by the injury to the fair market value of the plaintiff's land at the time of the taking: Providence etc. R. R. Co. v. Worcester, 155 Mass. 35; Moulton v. Newburyport Water Co., 137 Mass. 163; and he is also right in his contention that where similar land is commonly bought and sold, the testimony of a witness, when found by the presiding justice to be competent to testify to its value, should ordinarily be limited on direct examination to giving a direct answer to the question, What is its fair market value, in view of all the purposes to which it is naturally adapted? Manning v. Lowell, 173 Mass. 100. The defendant is also right in his contention that ordinarily the proper way to qualify a witness as a witness to value of property is to show that he is familiar with sales of similar property and the prices paid therefor: Lyman v. Boston, 164 Mass. 99.

302 But cases sometimes arise involving injury to property which is not commonly bought and sold. In a case involving injury to such property, to confine the owner of it to witnesses who show themselves qualified to testify to its value by their knowledge of sales of similar property, would be to deny the owner the right to prove what the true value of his property was. The market value of a piece of property is its value in view of all the purposes to which it is naturally adapted; that means that its market value, if it is unoccupied, is fixed by its value for the most valuable of those purposes. When an injury is done to property which is not commonly bought and sold, and a case arises in which the amount of that injury must be ascertained, it is proper to allow testimony to be given of its value for the special purpose for which it is used, and to allow that testimony to be given by persons who show themselves

qualified to testify thereto from knowledge derived from experience in their own business in which they have dealt with similar property. The value of land actually used for manufacturing purposes is an illustration of property of this description, and testimony of persons to its value for manufacturing purposes was admitted in Lowell v. County Commrs., 146 Mass. 403, though the persons testifying had no knowledge of purchases or sales of similar land and were qualified to testify as they did solely from knowledge derived from their experience as manufacturers. For similar cases, see Warren v. Spencer Water Co., 143 Mass. 155, and Manning v. Lowell, 173 Mass. 100.

And so when it was proved that the land in question in the case at bar is by nature adapted for use as a millsite for dyeworks or for a print-mill, it was proper for the presiding justice in his discretion to allow testimony to be given as to its value for such purposes, by persons who have been shown to be qualified to testify thereto by knowledge thereof derived from experience in that business, though the land was not then used therefor. To exclude such evidence would be to deny to the owner the power of proving the real value of that property; no one can testify to that value by knowledge derived from the sale of lands in the neighborhood; they are not similar lands; nor by sales of millsites for such purposes, for millsites are not commonly bought and sold. Evidence of the value of the property 303 as a millsite for such purposes, given by persons who have knowledge thereof derived from experience in that business, must be admitted from the necessity of the case.

But such testimony is objectionable as not being directly responsive to the question to be passed upon by the jury, namely, What is the injury to the fair market value of the property in view of all the purposes for which it is adapted by nature, including the specific purpose testified to, to which it has not in fact been devoted? By reason of its not being directly responsive, and by reason of the land not being in fact devoted to the specified purpose, such evidence raises many issues which, if it were possible, should not be raised. It is also objectionable because it may come as a surprise to the other party, who may have failed to anticipate that the case was an exceptional one, and who for that reason may not be prepared to meet any but direct evidence of the market value of the land as shown by purchases and sales in the neighborhood. For these reasons,

the usual rule should be departed from and testimony of this kind admitted only when without it it is impossible to prove the value of the property in question.

The defendant also contends that the question which the witness answered was the value of the land as a millsite, independent of the locality, and that such a question is, at the least, inadmissible. But no such question was put to the witness, and there is no reason to suppose that the witness supposed he was answering such a question. Counsel for the petitioner did at one point in the preliminary examination of the witness say to him: “What I am getting at here is the value of that supply of water in connection with the land-what is the value of that combination? I mean that value which is independent of the neighborhood which lies behind it—its value for manufacturing purposes." But after that question eighteen questions were put to the witness and a discussion by counsel ensued before the court ruled that the witness was qualified to testify to value. and before the question as to the value of the petitioner's land stated above was put to him. Under these circumstances, we do not think that the question ultimately put could have been understood by the witness as having been qualified by this statement made by the counsel in the preliminary examination. Exceptions overruled.

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 the capabilities of the property and all 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: McKinney v. Nashville, 102 Tenn. 131, 73 Am. St. Rep. 859.

OPINION EVIDENCE AS TO VALUE OF LAND.-In an action for damages to property arising from the construction of a railroad, a witness who has knowledge of the property is competent to testify as to whether its value has been increased or diminished by the construction of the road, and if diminished thereby, he is competent to testify as to the amount: Beck v. Pennsylvania etc. R. R. Co., 148 Pa. St. 271, 33 Am. St. Rep. 822.

COMMONWEALTH v. REAGAN.

[175 Massachusetts, 335.]

WITNESSES COMPETENCY OF CHILD.-When a witness is called, and it is objected that by reason of insanity or youthfulness he does not understand the nature of the oath, and is therefore incompetent, it is the duty of the judge to examine into the question of his competency, and to reject him unless he is satisfied he is competent.

Indictment, charging an assault upon a little girl five years old. At the trial she was called as a witness and allowed to testify.

C. S. Sullivan, for the defendant.

J. D. McLaughlin, second assistant district attorney, for the commonwealth.

835 HAMMOND, J. As the result of the voir dire examination of the witness the judge was of the opinion that she was not competent, but no formal order or ruling was made, and he permitted her to be sworn and to testify, stating that he should leave the question of her competency to the jury. In his charge to them he gave full and careful instructions as to the law material to that issue, and told them that if they found her competent they should take her statements as evidence, otherwise 336 they were to disregard all she had said, and deal with the case as though she had not been called. The evidence as to her competency is not before us, but from the course taken by the judge we must assume that in his judgment it would warrant a finding by the jury that she was competent. The defendant excepted to this course, contending that it was the duty of the court alone to decide that question. The jury brought in a verdict of guilty, and, in reply to the question put by the court, said that they found the witness competent, and in reaching their verdict they treated her as such and relied in part on her testimony. We assume that her testimony was prejudicial to the defendant, and therefore the simple question raised on the report is whether there was error in law in the method of dealing with the question of the competency of the witness.

Speaking generally, the text-books on evidence lay down the proposition that in a jury trial all questions as to the admissibility of evidence are for the judge. Thus Starkie says: "In civil as well as criminal proceedings, the competency of an in

fant is a question of discretion of the court": 2 Starkie on Evidence, 4th Am. ed., 393.

Phillips says: "It is the province of the judge presiding at the trial to decide all questions on the admissibility of evidence; it will be for the judge also to decide any preliminary question of fact, however intricate, the solution of which may be necessary for enabling him to determine the other question of admissibility": 1 Phillips on Evidence, 4th Am. ed., 3. And again he says that the competency of a witness is a condition precedent to admitting his evidence. "The judge alone has to decide whether such condition precedent has been fulfilled. If proof is offered by witnesses, he is to decide upon their credibility. If counter-evidence is proposed, he must receive it before he decides; and he has no right to ask the opinion of the jury on the fact as a condition precedent": 1 Phillips on Evidence, 4th Am. ed., 6.

Roscoe says: "It is for the court to decide upon the competency of witnesses, and for the jury to determine their credibility": Roscoe's Criminal Evidence, 12th ed., 100. The rule is laid down by Greenleaf, Taylor, and Wharton in equally positive terms: 1 Greenleaf on Evidence, secs. 81e, 161b; Taylor on Evidence, 23a; Wharton on Criminal Evidence, secs. 370, 373.

337 And this is so whether the objection to the competency is made upon the ground of interest, insanity, or infancy. Other familiar examples of the application of the rule are where confessions or dying declarations are offered in evidence. It is stated by Greenleaf that if the decision of the admissibility of the evidence depends upon the decision of other questions of fact, as, for example, the fact of interest of the witness or the due execution of a deed, in such cases it is allowable for the judge at his discretion to submit the question of the admissibility of the evidence to the jury, with instructions to consider it as evidence or not, according as they decide that question: 1 Greenleaf on Evidence, sec. 81e; Gordon v. Bowers, 16 Pa. St. 226.

But these cases are regarded as exceptions to the general rule, and it may be doubted whether the language of Greenleaf is not too broad, as applied at least to the practice in England and to criminal cases: See 1 Phillips on Evidence, 4th Am. ed., 6, and the language of Erle, J., during the argument in the case of Jenkins v. Davies, 10 Q. B. 314, 320, and of Denman, C. J., Am. St. Rep., Vol. LXXVIII-33