¶1 (concurring).
¶2 As to assignments of error 1 and 2, discussed under points (a) and (b) of the prevailing opinion, I have doubt as to whether the proffered evidence was admissible for any purpose; but since appellants concede that such assignments are insufficient upon which to base a judgment of reversal, and merely request that the court express an opinion thereon in the event, of a reversal, I do not think it is necessary to determine those questions.
¶3 As to the real question in. issue the appellants concede that the general rule is as stated in the prevailing opinion— that the damages of the condemnee are the difference in market value of the remaining property, before and after severance. However, appellants contend, as I understand their position, that in a case such as this, the jury should have pointed out to them, by instruction from the court, the various elements to be considered in determining the depreciation. Appellants went so far in this case as to submit a request for instruction embodying their theory and asking separate damages for claimed injuries to each separate part of the land. Not only did. the court not err in refusing this request, but it would have committed error if it had granted it. The request was a complete departure from the well settled rule that damages are given for depreciation in the fair market value of the land as a whole.
¶4 The state put on two real estate experts, who testified that the depreciation in market value of the remaining land was $1500 or $1800. Both of these experts were subjected to searching cross-examinations, and the exact bases of their opinions were clearly shown to the jury, both as to factors considered by them in making their estimates, and as to factors unknown to or ignored by them.
¶5 As pointed out in the prevailing opinion, restoration costs may, in some cases, be an accurate measure of damages, i. e. *461 of the depreciation in market value. In other cases restoration costs may bear no relation to the depreciation in market value. Market value is the price at which a willing vendor would- sell, and at which a willing buyer would purchase in a free and open market. Fair market value is ordinarily proved by the testimony of experts, who may be fully examined and cross-examined as to the factors considered by them, and the bases upon which they determined their appraisals.
¶6 As heretofore stated, the state put on two real estate experts. Appellants called none. Appellants put on evidence of the value of the basement home, replacement cost, cost of destroying the old home, value of trees, shrubs, fruit plants, etc. All- of these factors were prominently before the jury. That the jury was fully aware of all these factors and that they took them into account in reaching their verdict is evidenced by the fact that they fixed the damages to the remaining property at $3,900, or about twice the amount fixed by the experts as the depreciation value. The appellants have shown no prejúdicial error. For these reasons, I concur.