Neale

I concur in the judg ment, on the ground that there was such a conflict of evidence on the question of value as to warrant the order directing a new trial, but I do not think the superior court erred in ruling upon the motions to strike out testimony, or in its instructions to the jury.

This is a proceeding to condemn land for reservoir purposes. On the former appeal ( 78 Cal. 63 ), the judgment was affirmed as to all the issues except the issue as to the value of the land. The cause was remanded for a new trial of that issue, a trial was had, and a judgment on a verdict for $122,657.50 and costs of suit was entered in favor of defendants; but the plaintiff moved for a new trial, which motion was granted, and the defendants have appealed.

It would be sufficient for us to say that as the order appealed from is one granting a new trial, and as the evidence as to the value of the land condemned is conflicting, the decision of the court below, in the absence of a showing of an abuse.of discretion, will not be reversed. This rule has been so many times announced that it would be a work of supererogation to cite authorities in support of it. As some of the rulings of the court below at the trial were erroneous, however, we deem it advisable to refer to them for the guidance of the court at the next trial.

When the motion for a new trial was called for hearing, the defendants objected to the same being heard, on *55 the ground that the court had no jurisdiction to…