(dissenting).
I respectfully dissent from the majority opinion. The landowner in an eminent domain action is entitled to show the highest and best use to which his land is adaptable. It is his burden to show a present demand for such use or a reasonable expectation of such demand within a reasonable time in the future. Such evidence should be considered only with respect to its effect on market value at the time of the taking. Dolezal v. City of Cedar Rapids, Iowa, Iowa, 209 N.W.2d 84 (1973). 4 Nichols on Eminent Domain § 12.314, at 12-201 (3d ed. 1976). Potential uses that are too contingent, speculative, or remote to affect the present market value should not be considered. 4A Nichols on Eminent Domain § 14.241, at 14-152.1 (3d ed. 1976).
This state has followed a liberal course with regard to admissibility of evidence to prove valuation in condemnation proceedings.
“Great latitude is allowed in the reception of evidence to prove the value of property in condemnation cases, and generally any relevant and material evidence, if competent under general rules of evidence, is admissible to prove market value. . . .No competent evidence should be excluded which an ordinarily prudent man would take into account before forming a judgment as to the market value of property which he is about to purchase. If the proffered evidence tends to aid the trier of fact in arriving at a conclusion on the issue of value and damage, it should be received.” State Highway Commission v. Hayes Estate, 82 S.D. 27, 140 N.W.2d 680, 686-87 (1966) (citations omitted).
It cannot be said under the breadth of this rule that evidence of irrigation potential was not relevant to the present market value of the farm land in this case. Nor may it be said that such evidence was incompetent. It was based on the testimony of expert witnesses who the trial court found qualified to express their respective opinions. The real question is one of fact to be determined by the jury: whether the evidence establishes by a preponderance that irrigation is such a reasonably prospective use that it affected the present market value of the property. Such a question should not be decided by the court under *150the guise of determining admissibility of evidence. Iske v. Metropolitan Utilities District of Omaha, 183 Neb. 34, 157 N.W.2d 887 (1968).
However, if after consideration of evidence relevant to the question of reasonable prospective use, the court decides, on proper motion, that the evidence is speculative as a matter of law, the question may be kept from the jury. Nebraska Electric Generation and Transmission Cooperative, Inc. v. Tinant, S.D., 241 N.W.2d 134 (1976). Plaintiff sought to keep the question of irrigation potential away from the jury by making a general motion to strike all testimony on the subject as speculative. The trial judge denied its motion. I do not find that ruling erroneous, because, for the reasons set out below, I do not find the evidence- on irrigation speculative, as a matter of law. Therefore, I would allow the jury to decide if irrigation is such a reasonably probable use that it affects the present market value of the condemned property.
Viewing the record in the light most favorable to the verdict winner, the state of the evidence at the time the motion to strike was made justified the trial judge in submitting the irrigation issue to the jury. Based on the testimony of several experts, the evidence showed that the highest and best use of the property in question was as cropland. Part of the land had been used for crop production several years prior to conversion to its present use as a cow-calf operation. Based on soil studies the land was suited as cropland and was also suited for irrigation.
Pursuant to the landowner’s request a study was conducted by the soil conservation service on the location of a dam to be used for irrigation. A site had been selected. Based on records of past rainfall such a dam would have a maximum capacity of 250 acre feet of water. Runoff was sufficient to fill the dam to 50 per cent of capacity; the remaining water could be obtained from the Elm River during periods of high flow.
The landowner had also requested a study on the irrigability of his property and pursuant to the study an irrigation specialist had recommended irrigation by use of center pivot systems. By sharing center pivot systems between two quarters, the land could be economically irrigated. One hundred acre feet of water per quarter would be required for such an operation. The testimony was that the land was now worth less because the towers placed on the property interfered with the use of center pivot irrigation.
Admittedly many matters were brought out on cross-examination which undermined the factors relied on by the experts in reaching their opinions. Matters such as lack of a water permit, inadequate water supply for all seven quarters, and absence of a blueprint for the dam undoubtedly weakened the landowner’s case. However, these are factors to be weighed by the jury in reaching the factual determination of just compensation. A challenge to the factors considered by an expert in arriving at an opinion of damages, goes to the weight to be given to that opinion by the jury. Dash v. State, Alaska, 491 P.2d 1069 (1971). Evidence of the reasonable probability of irrigation, while not as strong as it might have been, had sufficient foundation to justify the court in rejecting the motion to strike and the proposed instruction.1
The jury was properly instructed on the question of just compensation, to include instructions on highest and best use, uses that may be reasonably expected in the near future, and speculative and remote matters not supported by the evidence. The jury could have properly concluded that irrigation potential, given the limited water supply, beneficially affected the present market value of at least a part of the property in question and thus was a proper consideration for the jury in their determination of the damage sustained by *151reason of taking.2 I would therefore affirm the judgment.
. The jury was instructed that they could properly consider the effect on the present market value of each parcel affected by the easement, but that they were to award one sum to reflect the entire damage to the property.
. Plaintiff’s proposed instruction was as follows:
“You are instructed that the possibility of irrigation on the subject property is remote
*151Instruction 9 provided:
“It is established that the land included in the perpetual easement acquired by the plaintiff in this action is a portion and a part of a larger tract of land belonging to defendants as is shown and described by the evidence.
When rights as to a portion of a tract of land is so condemned under condemnation proceedings, just compensation to the landowner is the amount which is equal to the difference between the fair market value of the entire property immediately before the condemnation and the fair market value of the property immediately after the condemnation.
You will find an award the owners of each parcel one sum which will represent the entire difference in reasonable market value of his property before the condemnation and the reasonable market value after the condemnation even though seperate and various items or elements enter into your deliberation in arriving at the same.
The laws of this state provide that the tract which may be considered in determining the difference between the fair market value immediately before the condemnation and the fair market value of the property after the condemnation shall in no case extend beyond the quarter sections of land through which the easement is granted.”
Instruction 12 is in a similar vein:
“In determining what ‘just compensation’ shall be as to each parcel in this case, you should carefully follow the following instructions: Just compensation due the landowner in this type of case is that amount which is equal to the difference between the fair market value of his property immediately before the taking and the fair market value of his property immediately after the taking. In other words, the just compensation is the depreciation in the market value of each of these parcels that is occasioned by the taking of this easement by Basin Electric Power Cooperative, Inc. For the purpose of determining fair market value, the date of the taking is January 28, 1975.”
The above instructions were given by the trial court without objection.
and speculative and not to be considered by you in your deliberations.”