concurring specially: It must be conceded under the present state of Kansas law that a landowner may not, in a condemnation proceeding, litigate the validity of the proposed condemnation and the right to appropriate property, and that in *160order to raise such questions he must bring a separate independent action. Query, under this state of the law, how the landowner would fare where the condemning authority actually had no power of eminent domain in view of the fact, that land under Kansas law is subject to an action for specific performance when placed under contract. This to me suggests a need for legislative attention. Under Dick v. Drainage District No. 2, 175 Kan. 869, 267 P. 2d 494, an injunction action becomes moot if the installations are complete at the time the Supreme Court hears the appeal.
Concerning the rulings of the trial court on the admissibility and rejection of evidence, it is only fair in my opinion to disclose what actually took place in the trial below since this case further suggests need of legislative attention in the field of eminent domain.
The trial court properly recognized the measure of damages to be applied in a condemnation action in presentation of the landowner’s case in this condemnation appeal. It appears from the record that the trial court recognized the true measure of damage in a case such as this to be the fair market value of the land actually taken by the condemnation, plus the diminution in the fair market value of the remaining land not taken, and that the valuations were to be based upon the fair market value of the property for the best and most advantageous use to which it could be put. When the condemner presented its evidence, however, the trial court switched the theory upon which damages were to be proved.
It must be remembered that the right of way condemned for an electric high line in the instant case was SO feet wide and crossed two city lots and a 160-acre tract of land adjoining these lots adjacent to the City of Coffeyville, Kansas, owned by the appellant, A. W. Cline. According to Cline’s testimony the total damages to the 160-acre tract of land by reason of the high line crossing it was $90,000.00 as determined in accordance with the measure of damages heretofore stated. In his opinion the market value of one of the lots was $2,500.00 and the other $2,000.00 and that the market value of these lots after the high line was placed over them was not one penny. It must, further be remembered that the high line over this property was admitted to be a 69,000 volt high line with three wires, each carrying that voltage.
Other value witnesses testifying on the landowner’s behalf were licensed real estate brokers from Coffeyville, Kansas, and while their testimony did not disclose valuations quite as high as the *161landowners testimony the values were generally consistent therewith.
Clyde C. Clark, called as a witness on behalf of the appellee, the Kansas Gas and Electric Company (defendant below), was a registered licensed realtor from Independence, Kansas. Note that this witness is from a city foreign to Coffeyville where the land is situated. The material testimony of Mr. Clark is as follows:
“Q. Mr. Clark, you have looked at and inspected Lots 1 and 2, Block 17, Cline’s Westwood Addition?
“A. I did.
“Q. Do you have an opinion as to the amount of damage Mr. Cline has sustained because of the limitation placed upon his use of these two lots by the condemnation of this strip which it is agreed is 25 feet on each side of the line as it is now located?
“A. I have.
“Q. What, in your opinion is the damage he has sustained by reason of the limitation on that strip?
“Mr. Lamb: Object to that as not the proper measure of damage.
“The Court: Objection overruled.
“A. T.en dollars.
“Q. In your opinion is the balance of these lots damaged by reason of this right-of-way?
“A. No, sir.
“Q. Now, you have also inspected the northeast quarter of section 33-34-16, the tract immediately west of that?
“A. Yes, sir.
“Q. You have examined tire right-of-way and the line on it?
“A. Yes, sir.
“Q. Now how much damage, in your opinion, has Mr. Cline sustained because of the limitations placed upon his use of the property by the condemnation of this strip, which it is agreed is 25 feet on each side of the line as it is now located and roughly three and a half acres.
“Mr. Lamb: To which we object as incompetent, irrelevant and immaterial, and not the proper method in which to ascertain the damage.
“The Court: Objection overruled.
“A. One thousand dollars.”
On cross examination he was asked:
“Q. Take the Tyler tract south of this did you know it was sold, eighty acres, for over $110,000.00?
“Mr. Scovel: Object to this as improper cross examination, there is no testimony with reference to the value of this tract, he stated in his opinion it was not damaged other than the limitation on its use. Had he been of the opinion that the balance of the tract not taken was damaged there would have been testimony as to the value before or after, he didn’t state whether he thought that was worth a thousand dollars or a hundred thousand dollars.
*162“Mr. Lamb: This goes to the qualification of the witness.
“The Court: He testified as to that value and said there was none.
“Mr. Lamb: But he says the land was damaged ten thousand dollars.
“Mr. Scovel: One Thousand dollars.
“The Court: I don’t believe inquiry into his idea of value in that way would be proper cross examination.”
Arch McKown, a licensed real estate broker engaged in the insurance and real estate business for fifteen years at Independence, Kansas, was called to testify for the appellee and was asked on direct examination the following question:
“Q. Now, do you have an opinion as to how much damage Mr. Cline sustained by reason of the limitation placed upon his use of these two lots by the condemnation of this strip which it is agreed is 25 feet on each side of the line as it is now located?
“Mr. Lamb: To which we renew our objection for the reason that the same is not the proper question to secure the measure of damage.
“The Court: Well, the rule is that the measure of damage that the courts have recognized is the difference in value before and the value after.
“Mr. Scovel: This is the limitation of the use.
“The Court: You may answer.
“A. Yes.”
Floyd Fair, a licensed real estate broker from Coffeyville, was called on behalf of the appellee and was asked the following questions on direct examination to which he gave the following answers:
“Q. Both the two lots on the east side of the road and the 160 acres?
“A. Yes, sir.
“Q. Now, you noticed that there is a Kansas Gas & Electric Company line overhangs these two lots; Lots 1 and 2, in Block 17, but there is no pole on either lot?
“A. Yes.
“Q. Now, how much damage, in your opinion, has Mr. Cline sustained by the limitations placed upon his use of these two lots by the condemnation of this strip, which it is agreed is 25 feet on each side of the line as it is now located?
“Mr. Lamb: Same objection as heretofore.
“The Court: Objection overruled.
“A. I would say twenty dollars.
“Q. Has the remainder of these two lots been damaged as a whole by reason of the limitations of use of this strip?
“A. No, sir.
“Q. Now coming back with reference to this 160 acres, how much damage, in your opinion, has Mr. Cline sustained because of the limitations placed upon his use of this 160 acres by the condemnation of this strip, which it is agreed is 25 feet on each side of the line as it is now located, and occupies, approximately three and a half acres?
*163“Mr. Lamb: Same objection.
“The Court: Objection overruled.
“A. I had a value of Five Hundred Dollars.
“Q. Has the remainder of the tract, as a whole, been damaged by reason of the hmitation of the use of this strip?
.“A. I don’t think so.”
On cross examination he was asked the following questions:
“Q. Do you have an opinion as to the value of this Cline 160 acres?
“A. Yes, sir.
“Q. What is your opinion?
“Mr. Scovel: Object to that as immaterial.
“The Court: Objection sustained.”
It is clear from the foregoing testimony that the trial court permitted the appellee to present its case upon a theory of damages entirely different from that presented by the appellant in the case and even went so far as to deny the right of cross examination in accordance with the theory of damages upon which the appellant’s case was presented.
Regardless of what a jury may have been instructed with respect to the 'measure of damages in a condemnation action, the manner in which the testimony was presented to the jury, in view of the objections and rulings of the court in the presence of the jury, could have had no effect other than to confuse the jury thoroughly.
The testimony of expert witnesses must be weighed by the jurors just as the testimony of any other witness. Only by permitting cross examination of witnesses to the fullest extent in a condemnation action can a jury be in any position to determine the probative value of opinion testimony. It must be particularly noted that two of appellee’s witnesses were not even licensed real estate brokers from Coffeyville where this property was located. In this connection, Mr. Clark, called by the appellee, testified on cross examination that he was not acquainted with the value of lots in Coffeyville; that he had never bought or sold any lots in Coffeyville; that'he did not know of any lots sold in Westwood or any of the Cline Additions; and he did not make any inquiry as to any lots sold in that vicinity. The limitation on cross examination of a witness of this type was highly prejudicial because the appellant was given no opportunity to test the opinion of the witness relative to values which were the proper measure of damages upon which to try this case. Furthermore, the wide divergence in values between the witnesses of the appellant and those of the *164appellee made it extremely important that the jury have the benefit of cross examination of witnesses for both parties, not just the landowner’s witnesses, to be in a position to properly weigh opinion testimony before it. I seriously question that a real estate broker who is not familiar with land values by reason of experience in the immediate locality of the property condemned is even qualified to testify as an expert. Yet it is familiar to the Bench and Bar that real estate brokers from counties foreign to the land are sometimes called as expert witnesses in a condemnation action and paid $100.00 per day for their services by the party calling each of such witnesses.
At the motion for a new trial the appellant, A. W. Cline, gave sworn testimony as proffered testimony which was excluded by the rulings of the trial court upon the trial of the action.
Under the present state of Kansas law this testimony was properly excluded, but it is material as information for the Bench and Bar to indicate the inadequacy of condemnation laws in Kansas to protect the rights of a landowner in a condemnation action.
This testimony consisted of a conversation between A. W. Cline, the appellant, and representatives or agents of the appellee, the Kansas Gas and Electric Company, prior to the condemnation action. Mr. Cline testified:
“Q. Did you have a conversation with him there before this high line was put across your place?
“A. Yes, sir.
“Q. Tell us what was said at that time between you and this man Sutter.
“A. He said he was very sorry how the thing was going across and he would do what he could about it, but he said it was quite and [an] extensive operation. I asked him how much it would cost to by-pass the place, and after doing some figuring there he said, well what would it be worth to you. I said, after doing some more figuring, 1 will give you $29,000.00 spot cash to by-pass this place and stay off the subdivision [’] [the 160-acre tract in question]. He said, that sounds all right to me, I will go to Wichita tomorrow and take it up with the officers over there, and he left.
“Q. Did you see him later?
“A. Yes, sir.
“Q. Did you have a conversation with him relative to that matter?
“A. Yes, sir.
“Q. What was said in that conversation?
“A. He came to my house a few days after that, he said, Abe, I am awfully sorry but they have decided to go across where they have surveyed, and they have turned down your offer.”
*165The jury returned a verdict for $8,500.00.
I concur in the court’s opinion that the owner’s rights were prejudicially affected by the erroneous rulings of the trial court and that a new trial should be granted, and further desire to emphasize a great need in Kansas for adequate legislation in the field of eminent domain so that the rights of landowners may be adequately protected in accordance with constitutional safeguards. (See, Moore v. Kansas Turnpike Authority, 181 Kan. 840, 317 P. 2d 384, and Jenkins v. Kansas Turnpike Authority, 181 Kan. 862, 317 P. 2d 401, particularly the dissenting opinions thereto.)