dissenting.
Before proceeding directly to the fact that the majority, in my belief, misinterprets and misstates the motion to strike which is the basis of the first assignment of error, I believe that it will be useful to devote a moment to the rule which governs the amount of recovery in a proceeding of this kind.
*461Highway Commission v. Holt, 209 Or 697, 308 P 181, was based upon a condemnation proceeding to take 1.05 acres of the defendants’ land. The defendants sought to show that they desired to nse their land, which was marshy, for industrial purposes and that preparatory to doing so they filled a part -of it with gravel. Upon appeal, the defendants challenged rulings of the trial judge which sustained the state’s objection to testimony which the defendants offered to show the cost of the gravel. The following quoted excerpt sustained the trial judge’s ruling:
“It is well-established that where, as here, there is a total taking of the land for public use, the owner is to be compensated by receiving a fair cash market value of the land, which includes the land itself and any improvements thereon which are a part of the realty. Highway Comm. v. Superbilt Mfg. Co., 204 Or 393, 281 P2d 707.”
It is evident that since this court sustained the rulings of the trial judge which excluded evidence showing the cost of the improvements, it held that the cost of the improvements was immaterial to the issues of the ease. In the present case the cost of the improvements was received and was included in the estimate made by the defendant, Dumas, that his property’s market value was $30,000. It came into the trial concealed — like a stowaway. The plaintiff’s motion to strike Dumas’ testimony that the improvements cost $5,000 was denied. Thus, this case reaches a result the direct opposite of the one from which I just quoted.
To the same effect as Highway Commission v. Holt, supra, is State Highway Comm. v. Anderson, 234 Or 328, 381 P2d 707.
*462Other courts take the same view as those two, for example, City of Chicago v. Giedraitis, 14 Ill2d 45, 150 NE2d 577, held:
“Neither do we believe that the trial court erred in excluding Dorothy Giedraitis’ testimony concerning amounts which she had expended since 1948 in improving the premises. Although replacements or reproduction costs may, under certain circumstances be material, this proffered proof was not designed for that purpose but sought only to show the appellant’s investment and was therefore clearly inadmissible. The test is not what the improvements originally cost or the sum that the owner has expended therein, but rather it is the amount for which the entire property would voluntarily sell.”
The rule stated in those decisions is so well established that this dissent need not resort to additional authorities. The measure of recovery is the market value of the property. If improvements have been made to the property, the appraisers take them into consideration when they view the property and appraise its value. In other words, the rule which governs this case awards to the owner the market value of his property as it existed upon the day of condemnation. Market value includes the entire property — improvements and all. It can readily be seen from the holding in the cases just noted that the cost of the improvements is immaterial and irrelevant. The relevant, material fact is the market value of the property.
Defendants’ counsel asked one of his clients on direct examination:
“Q Mr. Dumas, can you tell the jury what you believe to be the fair market value of your property? As of the 26th day of July, 1962?”
*463Before quoting Dumas’ answer, we note that July 26, 1962, was the day upon which this condemnation proceeding was instituted. Dumas answered: “Well, I’d say $30,000.”
Thus, we see that the defendant, Lawrence Dumas, testified that the market value of his property was $30,000. Plainly no objection could have been made to either the question or the answer. An owner is entitled to testify as to the market value of his property. Hanns v. Friedly, 181 Or 631, 184 P2d 855; Wigmore on Evidence, 3rd ed. § 714 (5); 32 CJS, Evidence, § 546 (116). But presently cross examination brought forth a concession from Dumas that in setting $30,000 as the property’s market value he included $5,000 as the value of “the material that I bought to make the improvements.” He had made no ¡statement to that effect upon direct examination. Upon cross examination he testified:
“Q But, in arriving at the $30,000, you actually based all or a portion of that amount on the amount of money that you had spent to make improvements since you purchased it, is that correct?
“A After I purchased the place, yes, uh-huh.
“Q Well, in arriving at your opinion of $30,000, does $5,000 of that amount represent the cost, new of the improvements that you made when you made them?
“A Yes. That’s the material that I bought to make the improvements, yes.”
When it developed that the defendants were seeking to recover $5,000 in addition to the property’s market value, the plaintiff moved to strike Dumas’ *464mention of $5,000 as the value of the improvements. Plaintiff’s counsel stated:
“Plaintiff would move to strike the amount of $5,000 from the defendant’s testimony the value of this property, which is $30,000; on the grounds it is based on the cost of the improvements new and not on what the property is worth on a fair-cash-market value.”
Thus, when it developed that the $30,000 estimate concealed a stowaway of $5,000 (the purported cost of the improvements) the plaintiff moved to strike the cost of the improvements. The motion was overruled.
Prom the foregoing we see that defendants’ counsel, by use of a question which made no mention of the unallowable item of improvements, received an answer that the property’s market value was $30,000. That sum included wrongfully $5,000 for the noneompensable item of improvements. The law afforded the plaintiff no means of revealing that the defendants were seeking to win a verdict including an unauthorized sum of $5,000 except by resort to cross examination. But, when they developed that fact by an express admission of Dumas, the motion to strike was denied. It should have been sustained and the trial judge, in sustaining it, should have told the jury that the testimony was stricken because nothing could be awarded the defendants as the cost of the improvements in addition to market value. Vol. 5, Busch, Law and Tactics in Jury Trials, § 610.
Dumas’ testimony renders it clear that he calculated $30,000 as the market value of his property by including in that sum $5,000 as the cost of the improvements. Had it not been for the unwarranted *465addition of the $5,000 item, the market value would have been $25,000.
Possibly it is pertinent to note that Dumas’ testimony concerning the cost of the materials ($5,000) was not given in an effort to establish reproduction cost. No effort of that kind was made. Likewise, it may be helpful to add that no one testified that the improvements were beneficial or added to the market value of the property. Dumas testified that the materials, as new, cost $5,000. No one mentioned the effect which depreciation had upon the improvements since their construction.
The foregoing appears to warrant an inference that if the defendants’ counsel had asked Dumas on direct examination to state the amount he paid for the improvements, the court would have sustained an objection; but when Dumas concealed the $5,000 (the cost of the improvements) as a stowaway in his estimate, nothing could be done by any one to eject the stowaway from the case.
Other courts do not take the view of the majority. In Commonwealth, Dept. of Highways v. McGeorge, (Ky) 369 SW2d 126, the Kentucky Highway Department sought to condemn for highway building purposes .78 acre of the defendant’s 9.8 acre tract. We take the following from the decision:
“The condemnor moved to strike the valuation evidence given by certain of landowners’ witnesses on the ground that they showed no reasonable basis for their estimates. For the same reason it is contended that the evidence does not support the verdict. * * * The witnesses in this case were competent on the subject of land values, and although testimony should be stricken when the witness on cross-examination makes it unmistakably clear that *466his estimates are based entirely on incompetent and improper factors, it cannot be stricken or ignored merely because he flounders a little. This is for the jury to judge.”
The following is taken from Eubank v. Spencer, 203 Va 923, 128 SE2d 299:
“If evidence has been admitted to support an allegation in an action and it is later found that it has no probative value, it should be stricken out upon request, and the jury should be told that it should not be considered for any purpose * *
City National Bank v. Nelson, 218 Ala 90, 117 So 681, held:
“We think the trial court erred in not sustaining the defendant’s motion, to exclude the evidence of Mrs. Sims as to mixing the cotton, and made the basis of the third assignment of error. The witness testified on redirect examination: ‘If he lacked any bale of cotton he picked on his home place, he would make out from the other, and if he lacked at that place he would pick out from the home place and just mix it together.’ On recross the witness stated: ‘* * * I actually didn’t see it. I said he mixed it because that was his rule, that fall I didn’t actually see it.’ The motion to exclude specifically stated, ‘the evidence of the witness that if Sims did not have enough cotton picked off of one place to make a bale, he would mix it with cotton picked off of another place.’ The witness on recross showed that she did not know the facts to which she had testified.”
In affirming the challenged judgment, the majority places upon the motion which the plaintiff made to strike the testimony which Dumas gave and in which he stated that the improvements cost $5,000 a meaning which even the defendants have not placed upon it. *467I shall shortly quote the defendant’s exact words. The majority do not pass upon the plaintiff’s motion, but quote some words from the plaintiff’s brief and substitute them for the motion. In my opinion, the words selected by the majority do not have the meaning which the majority attribute to them. Obviously, after Dumas had testified to a belief that his property’s market value was $30,000, in which sum he had wrongfully included $5,000 as the cost of the improvements, the plaintiff wished to challenge that testimony. But until it received a ruling that the $5,000 item was inadmissible and that the cost of improvements was unallowable it could not attack the estimate of $30,000. The plaintiff’s effort to explain that situation in the brief accounts for the statement which the majority take from the brief. The plaintiff moved to strike only the $5,000 item; presumably it did so as a preliminary to attacking the $30,000 estimate.
Plaintiff’s motion to strike reads:
“Plaintiff would move to strike the amount of $5,000 from the defendant’s testimony the value of this property, which is $30,000; on the grounds it is based on the cost of the improvements new and not on what the property is worth on a fair-cash-market value.”
It is difficult to understand how the majority can encounter any perplexity in determining the meaning of those words. It will be noticed that the motion sought to strike $5,000 from the defendant’s testimony. In order to make his meaning doubly certain, plaintiff’s counsel added that his motion was “based on the cost of the improvements new and not on what the property is worth on a fair-cash-market value.” Thus, it is clear that the plaintiff moved to strike the part of *468Dumas’ ¡testimony, which he had just given and in which he stated that the improvements cost $5,000.
The majority, in ¡an effort to sustain its ruling, quotes from the plaintiff’s brief. The latter also states:
“* # * Thus, when it became apparent upon cross-examination that Mr. Dumas had included within his estimate of value the sum ¡of $5,000, representing the cost of certain unspecified improvements made upon the property, plaintiff’s counsel made the following motion:
“ ‘Mr. Bemis: Plaintiff would move to ¡strike the amount of $5,000 from the defendant’s testimony the value of this property, which is $30,000; on the grounds it is based on the cost of the improvements new and not on what the property is worth on a fair-eash-market value.’ Clearly, plaintiff’s motion was not overbroad, but was definite, certain and directed precisely to the sum of $5,000, being the cost of certain improvements, which, as we have seen, is not competent proof ¡of the market value of the property taken. Plaintiff submits that the trial court erred to the plaintiff’s prejudice in failing to grant plaintiff’s motion to strike this portion of Mr. Dumas’ testimony * *
Accordingly, it is clear that the plaintiff sought to strike from the record the cost of the improvements.
The first assignment of error reads:
“The trial court erred in denying plaintiff’s motion to strike from the testimony of the witness, Lawrence L. Dumas, the sum of $5,000, representing the cost of improvements made upon the property.”
That assignment of error states in clear, understandable language that the plaintiff wishes a ruling by this court that the trial judge erred when he denied the plaintiff’s motion to strike from Dumas’ testi*469mony Ms statement that he spent $5,000 “as the cost of improvements made upon the property.” We invariably accept the assignment of error as the basis of onr rulings. TMs court has no power to redraft an assignment of error.
The defendants-respondents have experienced no difficulty in determining the meaning of the motion to strike nor in determining the purpose of the motion upon which the first assignment of error is based. Their brief states:
“The refusal of the Court to strike the sum of $5,000 for improvements constitutes plaintiff’s first assignment of error.”
The majority with approximate accuracy states the purpose of the plaintiff’s motion. Their opinion declares :
“The purpose of the cross-examination was to disclose that Dumas had included an irrelevant factor in his estimate of $30,000 as the value of the property. When this appeared counsel for the plaintiff moved to strike the sum of $5,000 from the estimate.”
As the majority state, the purpose of the cross examination was to reveal that when Dumas expressed an opinion that the property’s value was $30,000 he included in his estimate an unallowable item of $5,000. by glancing once more at the motion to strike, it is seen that the plaintiff did not ask that $5,000 be stricken from Dumas’ “estimate” but that Ms statement that the improvements cost $5,000 be stricken.
Obviously, the ultimate objective of plaintiff’s motion to strike was Dumas’ testimony that the market value of the property was $30,000. But even though the cross examination had disclosed that the estimate *470of $30,000 included $5,000 for improvements, the plaintiff could not move to strike the estimate. As owner of the property, Dumas could rightfully place before the jury his opinion that the property was worth $30,000. His opinion as to his property’s market value could not be stricken. But, if his statement that the improvements cost $5,000 had been stricken, his estimate of $30,000 would have been undermined to the extent of $5,000. As already pointed out, the trial judge, upon sustaining the motion to strike (had he sustained it), should have explained to the jury that the motion to strike was allowed because in this ease nothing could be awarded to the defendants for the cost of improvements in addition to market value.
It seems plain that the plaintiff was entitled to a ruling upon its motion since (1) the motion to strike clearly states that it was aimed at the $5,000 cost of the improvements and not at the $30,000 estimate of the property’s value, (2) the first assignment of error is clear in meaning, (3) the plaintiff’s (appellant’s) brief states with clarity the meaning and purpose of the motion, and (4) the defendants’ brief states that “the refusal of the court to strike the sum of $5,000 for improvements constitutes plaintiff’s first assignment of error.”
If we would now hold that error occurred when the motion to strike was denied, no one would be wrongfully prejudiced. To the contrary, justice would be promoted.
The majority seems to intimate that because the cost of the improvements, $5,000, was disclosed upon cross examination, the plaintiff could not move to strike the answer. The only way in which the plaintiff could reveal the fact that the defendants were *471seeking to recover an unallowable amount of $5,000 was through cross examination. It had not been disclosed on direct examination. The fact that a nonreeoverable sum of $5,000 lurked in Dumas’ answer “$30,000” could be brought to light only by cross examination. Everyday procedure in the circuit courts employs this practice and strikes from the record inadmissible testimony that was given before its infirmity appeared, or an item, such as $5,000, that the witness had lumped into a general total, such as $30,000. No other rule would be tolerable.
The majority also states that if $5,000 were stricken from Dumas’ testimony of “I’d say $30,000,” the court would thereby attribute to him an answer that he had not made. No such argument is ever advanced when a plaintiff or a defendant moves to strike from a pleading, signed by the opposing party, a part thereof. However, the majority’s statement is without foundation. Dumas’ answer that he spent $5,000 on improvements stood by itself. It was the only answer given by him against which the plaintiff moved. His answer that the property’s market value was $30,000 would not have been altered had the motion to strike been sustained. But if the motion to strike had been sustained, Dumas’ estimate that his property’s value was $30,000 would have been deprived of support to the extent of $5,000 and his counsel could not have reiterated to the jury upon argument that the defendants had invested in the property $5,000 for improvements.
I repeat that in my belief the plaintiff properly phrased and submitted to the trial judge its motion to strike from the record Dumas’ testimony that the improvements cost $5,000. But, even if the plaintiff did not properly express in its brief the motion which *472it submitted to the trial judge, a proposition from which I dissent, it is impossible to understand the significance of such a contention. The trial judge obviously had not seen that brief. The motion upon which he acted is the one which underlies assignment of error No. 1; it is not the phraseology, taken by the majority from the plaintiff’s brief. Both parties are in accord, as we have seen, upon the meaning of the motion that was actually submitted to the trial judge.
Since the majority affirm the denial of the plaintiff’s motion to strike the unwarranted item of $5,000 from the record, the plaintiff has been left in the position in which it is helpless to rid the record of an item of evidence which came into the record as a stowaway and which the decisions mentioned in a preceding paragraph hold was immaterial. The plaintiff could not have moved to strike Dumas’ testimony that the market value of his property was $30,000 because he, as the owner of his property, was entitled to express his opinion of the property’s market value. Further, we noticed from the transcript of testimony that the question put to Dumas by his attorney did not mingle into the question anything about the improvements and Dumas’ answer to the question avoided all mention of improvements. Since the motion to strike was denied, the defendants’ attorneys, in their arguments to the jury, twice mentioned the improvements and that Dumas had paid for them $5,000. The instructions given to the jury said nothing whatever about improvements. Under those circumstances it is reasonable to infer that the jury included in its verdict something for the cost of the improvements. Such a situation should not be tolerated by a court which administers justice. Inadmissible and immaterial evidence *473should be excluded from the record when a party submits a motion, like the one that we have quoted. Another meaning should not be substituted for it.
Since the above are my views, I deem it unnecessary to set forth the reasons which persuade me to believe that assignment of error No. 2 also possesses merit.
I dissent.