Schumann

By the filing of a complaint in the usual form the respondent began an action in eminent domain to condemn certain property of appellants for school purposes. The answer presented the value of the property as the sole issue. A trial was had before a jury. Beside the defendants a number of expert witnesses testified for each side. A verdict was rendered and judgment was entered accordingly, from which judgment this appeal is taken.

The principal ground of appeal presented is that certain instructions given are said to be erroneous. Of these instructions No. 7 is the center of attack. It reads:

“The burden of proof as to market value is on the defendants. That is, it is incumbent upon the defendants to prove to your satisfaction by a preponderance of the evidence what was the market value of the property the plaintiff is condemning, on November 2nd, 1923.”

The appellants insist that the use of the words “to your satisfaction” renders the instruction incorrect, in that it is claimed this statement is inconsistent with the proposition that the defendant is only required to produce so much proof as amounts to a preponderance of the evidence. In Lawrence v. Goodwill, 44 Cal. App. 440…