question was presented for decision but that its decision was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been rendered without deciding it.

The rule is a salutary one in view of the different jurisdictions of the state courts and of this court. It leaves in both the full plenitude of their powers. It permits no evasion by the state court of the responsibility of determining the Federal question if necessary to be determined; it permits no assumption by this court of jurisdiction to review the decision of local questions. The sufficiency of the local question to sustain the judgment rendered, and the necessity for the determination of the Federal question necessarily we have to consider, but, as was said in Johnson v. Risk, "Where a defense is distinctly made, resting on local statutes, we should not, in order to reach a Federal question, resort to critical conjecture as to the action of the court in the disposition of such defense." And, of course, the principle is applicable whether the question is presented as a ground of defense or a ground of action.

It certainly cannot be said that in the case at bar, the Supreme Court had not grounds of decision based on the local law, whether considered substantively or administratively. The "good time" law and the indeterminate sentence law were enacted at different times. Whether the former is part of the latter is a state question, and whether the Supreme Court has decided in the present case contrary to its ruling in a prior case may or may not be true. And, again, it is a state question, whether the "good time" law applies to the minimum sentence imposed, which, it is contended by defendant in error, is fixed and certain, not subject to diminution, § 5 of the Indeterminate Sentence Act providing that "prisoners under the provisions of this act shall be eligible to parole after the expiration of their minimum term of imprisonment, and prisoners who have been twice previously con

victed of a felony shall not be eligible to a parole." In other words, it is contended that the reduction for "good time" should be only from the maximum term, that being the sentence referred to in the "good time" law, which provides: "Every convict who shall have no infraction of the rules of the prison or the laws of the State recorded against him, shall be entitled to a reduction from his sentence," etc. It has been determined in other jurisdictions that the maximum term constitutes the sentence. See Ex parte Spencer, Scholl and Moyer, 228 U. S. 652; Commonwealth v. Brown, 167 Massachusetts, 144; Oliver v. Oliver, 169 Massachusetts, 592. In support of the contention that the Indeterminate Sentence Law and its provisions for parole did not in any way repeal or modify the Good Time Law plaintiff in error cites the last clause of § 6, which reads as follows:

"The convict so paroled, while at large, by virtue of such parole, shall be deemed to be still serving the sentence imposed upon him, and shall be entitled to good time the same as if confined in prison."

On the assumption made, the query yet remains, To what sentence is the good time to apply? We have seen, the Supreme Court has decided that a convict cannot be paroled until his minimum sentence has expired, and that good time does not apply to the minimum sentence, receives support from the fact that neither the counsel for the parties, nor the court upon the first petition, thought of the construction plaintiff in error now urges for the 'good time" law and its operation to reduce his minimum sentence. We are not required to resolve the dispute. We have stated the respective contentions of the parties to show that there were substantial local questions in the case upon which the Supreme Court may have decided it.

It follows, therefore, upon the authority of the cases which we have cited, that the writ of error must be dismissed. Dismissed.

229 U.S.

Statement of the Case.

MCGOVERN v. CITY OF NEW YORK.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 15. Argued November 8, 1912.-Decided June 9, 1913.

Where the state statute requires condemnation commissioners to determine the just and equitable compensation, any wrong done, so far as amount is concerned, is due not to the statute, but to errors of the court as to evidence or measure of damages.

A judgment by which an owner of condemned property gets less than he ought, and in that sense is deprived of his property, cannot come to this court on the constitutional question unless there is something more than an ordinary honest mistake of law in the proceedings. Backus v. Fort Street Depot, 169 U. S. 557.

The final judgment of a state court in condemnation proceedings should not be held to violate the due process provision of the Fourteenth Amendment unless the rulings of law prevented the owner from obtaining substantially any compensation. Appleby v. Buffalo, 221 U. S. 524.

Enhanced value of property as a part of a great public work depends upon the whole land necessary being taken therefor. The chance that all the property necessary can be acquired without the exercise of eminent domain is too remote and speculative to be allowed. C., B. & Q. Ry. v. Chicago, 166 U. S. 226. The owner of property taken in eminent domain proceedings is entitled to be paid only for what is taken as the title stands, Chamber of Commerce v. Boston, 217 U. S. 189; hypothetical possibilities of change cannot be considered. United States v. Chandler-Dunbar Water Co., ante, p. 53, followed, and Boom Co. v. Patterson, 98 U. S. 403, distinguished.

A wide discretion is allowed the trial court in regard to admission of evidence as to the value of property taken by eminent domain, and this court will not interfere on the ground of denial of due process of law where there was no plain disregard of the owner's rights. 195 N. Y. 573, affirmed.

THE facts, which involve the validity of an award in a proceeding for condemnation of land for the water supply system of New York City, are stated in the opinion.

Argument for Plaintiff in Error.

229 U. S.

Mr. Edward A. Alexander, with whom Mr. Jerome H. Buck, Mr. J. J. Darlington and Mr. George Gordon Battle were on the brief, for plaintiff in error:

The Commissioners of Appraisal, and the courts of New York, confiscated claimant's property in entirely excluding from consideration, as an element of value, its adaptability for use as part of a reservoir site. An owner is entitled to have his interest valued upon a consideration of all the uses for which his property is available and adaptable.

The decision below overrules Boom Co. v. Patterson, 98 U. S. 403.

Just compensation means the fair and full money value of the property taken; this value of the property taken means its market value. As to what market value means, see Wetmore v. Rymer, 169 U. S. 115, 128.

There is no market value, in the strict sense of the term, for real estate, and especially for country real estate, in the sense that there is market value for stocks, bonds and produce. Sargent v. Merrimac, 196 Massachusetts, 171.

In New York the courts will not set aside awards of Commissioners, although the awards may be inadequate. An award must be so inadequate that it is shocking to the sense of justice before they will set it aside. Flynn v. Brooklyn, 19 App. Div. 602; Long Island R. R. Co. v. Reilly, 89 App. Div. 166.

An inadequate award, even though not shockingly so, is, nevertheless, not just compensation. Only an adequate award is just compensation.

The state courts have wholly, entirely and completely confiscated the claimant's property.

While the owner is not permitted to take advantage of the necessities of the condemning party, he is entitled to have the value of his property considered, with reference to its adaptability for any and all uses to which it may be devoted.

Fitness of lands for particular purposes is an element

229 U.S.

Argument for Plaintiff in Error.

in estimating their market value. Boom Co. v. Patterson, 98 U. S. 403; Sedgwick on Damages, § 1075; Louisville Ry. Co. v. Ryan, 64 Mississippi, 309; Seattle Ry. Co. v. Murphine, 4 Washington, 448, 456; Matter of Staten Island R. R. Co., 10 N. Y. St. Rep. 393; Russell v. St. Paul Ry. Co., 23 Minnesota, 210; Sanitary District v. Loughran, 160 Illinois, 362; McGroarty v. Coal Co., 212 Pa. St. 53; Paine v. Kansas Valley R. R. Co., 46 Fed. Rep. 546, 557; Amoskeag Co. v. Worcester, 60 N. H. 522; Harwood v. West Randolph, 64 Vermont, 41; Gardiner v. Brookline, 127 Massachusetts, 358; Conness v. Commonwealth, 184 Massachusetts, 541; Gage v. Judson, 111 Fed. Rep. 358.

It has been the uniform rule in ascertaining the value of property taken for a public use that all the capabilities of the property and the uses to which it may be applied, or for which it is adapted, are to be considered, and not merely the condition which it is in at the time and the use to which it is then applied by the owner. Hooker v. M. & W. R. R. Co., 62 Vermont, 47; Syracuse v. Stacy, 45 App. Div. 249, 254; Matter of N. Y., L. & W. R. Co., 27 Hun, 116; Benham v. Dunbar, 103 Massachusetts, 368. See also to the same effect: Matter of Furman Street, 17 Wend. 649, 669; College Point v. Dennett, 5 T. & C. 217; Matter of Commissioners, 37 Hun, 537, 555; Matter of Union E. L. R. R. Co., 55 Hun, 163; Matter of Daly, 72 App. Div. 396.

In this case the city is condemning property from which it will derive a commercial profit, and in that respect is different from that of a public park or public school, or fortification, where the property is condemned exclusively and solely for public benefit.

The proposed testimony offered and rejected by the state courts is not speculative. Matter of Gilroy, 85 Hun, 424, 426.

Such testimony is no more guesswork in this case, than in any other where the special adaptability of property is taken into consideration. Blake v. Griswold, 103 N. Y.