DENMAN, Circuit Judge.
Appellants appeal from a decree in a condemnation proceeding awarding to each damages for the taking of the lessors’ and lessees’ mineral rights in land under leases for oil and gas development, upon which it is claimed there had been a discovery of petroleum gas of commercial quantities. They claim, inter alia, that by the refusal of a proper instruction on the valuation of the oil and ga's leases, the amount of damage awarded by the jury is grossly inadequate.
The maps in evidence, referred to in appellants’ briefs, show these oil and gas leases are of land in northern Contra Costa County about 25 miles northeast of the city of Oakland and about 32 miles from the city of San Francisco. Locally, they are situated about 2miles southeast of Port Chicago, on Suisun Bay, a branch of the Bay of San Francisco, 5 miles southwest of the city of Pittsburg, and 3 miles northeast of the town of Concord.
The claimed discovery of natural gas in commercial quantities is thus seen to be in the second largest metropolitan area in California having a population in 1940 of 1,500,000 people — increased by at least 25% since that time. If, as appellants’ testimony is, there is the likelihood that the gas bearing land also contains oil, the maps in evidence show it is within ten miles of one of the largest concentrations of oil refineries in the Pacific state's, those of the Standard, Shell, Union and Associated oil companies.
We take judicial notice that this metropolitan area is a large consumer of natural gas. Since there are no sizable gas producing areas in northern California, we know it is brought through pipe lines from gas producing areas between 200 and 300 miles distant.1
Appellants are here concerned with the question of the value of lessors’ and lessees’ interests in petroleum deposits in land located within this San Francisco metropolitan area, there being evidence that a well drilled upon it disclosed gas in commercial quantities.
The leases provided for the drilling of a well for oil and gas to a depth of 5,000 feet [17]*17and for the successor wells if the predecessor wells proved dry hole's. The lessee, Cal-Bay Corporation, had leases on 687 acres of the land surrounding a well drilled by it, of which the government condemned 217.79 acres. The surface value of the land has been adjudicated and is not in question here.
The Corporation Commissioner of the State of California, on the surface showings of possible oil and gas, gave permission for the issuance and sale of $250,000 par value of the Cal-Bay Corporation stock upon its leasehold interest. Investors were found who bought this stock at par — that is at the rate of $366 per acre for the 687 acres in the leasehold.
A well was drilled to 5,000 feet. Its cost of over $250,000 is not recoverable as an item of damage but was admitted in evidence by the district court for its bearing upon values of the oil and gas development. Its large amount and possible successor amounts showed how the lessee regarded the value of the hazards of the venture.
Appellants to sustain their burden of proof introduced testimony that the drilling of the well was commenced in July 1943, discontinued in November 1943, and resumed in June 1944. At a depth of 3,000 feet gas showings were found. At a depth of 4,268 feet the volume of gas amounted to 100,000 cubic feet a day, and this increased to 125,000 cubic feet a day as greater depths were reached.
Location of the well was made on the recommendation of Byron Norris, a consulting geologist and petroleum engineer, and developments were supervised by him. He had been an inspector in the Division of Oil and Gas of the State of California for nine years. His qualifications as an expert are not questioned. His first inspection of the Cal-Bay properties in March 1942, was followed by careful examinations and tests. He found pronounced surface indications of oil and gas. He found pronounced favorable formations. He recommended the drilling of the well at the point where it was drilled and was of the opinion that oil or gas would there be encountered at a depth of 5,000 feet.
Drilling of the well was actively in progress when the present action was commenced on July 25, 1944, and the appellant Cal-Bay Corporation was served with notice that the appellee required immediate possession of the land subject to the action. All work was stopped. Conferences with representatives of the Navy resulted in the resumption of drilling operations in August 1944. With the approval of the district court, a stipulation was entered into, on September 28, 1944, between the appellee and Cal-Bay Corporation, whereby the latter was permitted to remain in possession of two of the parcels and prosecute its drilling and other operations thereon “until one month after service by the plaintiff on said defendant, or on its attorneys, herein, of written notice of the termination of said right to possession.” Such notice of termination was served upon the appellant Cal-Bay Corporation on December 5, 1944, and possession was surrendered pursuant thereto on January 15, 1945.
When drilling had been resumed in August 1944, with the consent of the Navy-representatives, gas showings were encountered at 4,760 feet and steadily increased. On November 28, 1944, so great a volume-of gas was encountered at a depth of 4,975 feet that it “blew out” the contents of the well and temporarily disabled the well. In, the opinion of Byron Norris a “commercial discovery” of natural gas had been made,, stating of that phrase, “I mean gas in sufficient quantity to be saleable at a profit.”What the amount of gas and hence profit, would be he states is speculative. The jury-was thus entitled to infer that such a commercial discovery had been made.
Expert Norris’ testimony was strongly controverted by competent experts introduced by the government. They testified that no such discovery had been made and the highest value they gave for the lessees’ gas and mineral rights in the land was the nominal sum of $1,513 for the 217.90 acre total of the three parcels of land, that is less than $6.91 per acre. They gave similar testimony regarding the gas and mineral rights of the lessors who had %th royalties on the production, that is but $11.09 per acre. These were the amounts of the jury’a verdict.
[18]*18The court instructed the jury that “The defendants in this case are not entitled to make a profit because the interests which they claim they have were taken from them by the Government. By that I mean that they may not obtain more compensation by reason of the condemnation proceeding than they would obtain as the fair market value of such interest if there had not been a condemnation proceeding. The Government’s wartime necessity for the use of this property, for the particular purpose standing alone, cannot be considered in estimating the value of the property taken. Demand created by wartime necessity cannot be considered in estimating the value of the interest taken. Future income or speculative productive value contemplated is not a measure of condemnation value. Profits which might be derived
The statement that “Future income or speculative productive value contemplated is not a measure of condemnation value” is clearly likely to confuse the jury. An oil and gas lease with a proven discovery of gas in paying quantity but speculative as to its amount, of which there is here evidence, has its market value determined by arms length bargaining of buyers and sellers on the future income contemplated by each. This instructed sentence almost certainly would be considered by the jury as a statement that neither future income nor speculative production value, contemplated by the jury, is to be considered in their determining market value. This is so though the instruction may have been intended to convey the idea that neither future income nor speculative production value contemplated alone by either party is the same as market value.
With the likelihood of the Jury’s interpretation so adverse to appellants, they were entitled to the requested and refused instruction making it clear that the jury could consider possible future income and speculative production value in their determination of market value.
The next sentence that “Profits which might be derived from devoting the property to a particular purpose depends so much on conditions that cannot be foreseen that they have no competency is clearly erroneous. Gas and oil leases, the property here condemned, have as the “particular” and only “purpose” to which they are “devoted” the production of oil and gas. To say to the jury that evidence of the value of that purpose has no “competency” is taking sides with the government’s contention that the purpose to produce oil and gas is a negligible factor in the leases’ market value. Practically it is saying to the jury: “In determining the value of the leases you are concerned only with the surface value of the land.”
In this situation appellants requested an instruction that, in the determination of the value of gas and oil leases, it may be based on the reasonable possibility of production in paying quantities, even though there were not a reasonable probability shown of such value.2
Due exception to the denial of this requested instruction was made and the prejudicial effect of this claimed error was strongly argued here. It was made a section of appellants’ brief entitled “6. The [19]*19Court erred in refusing appellants’ requested instructions on market value,” in which it was said of the refusal to give this requested instruction 40 and two others that “Each was designed to correctly inform the jury that market value could be based on reasonable possibilities or speculative elements. The jivry was told the contrary. Therefore, the refusal of each of these instructions was prejudicial error.” (Emphasis supplied.)
There is thus no merit to the statement that appellants “made no claim either here or below that it [the requested instruction] was negatived by any charge actually given.” Nor is there merit in the novel contention that the excepted refusal to give a proper and needed instruction becomes valueless if there is no exception taken to a differing and erroneous instruction.
We think the district court erred in refusing such an instruction. We take notice that, in California, discovery in land of a reasonable probability of successful development of gas or oil gives great value to such land and that it has a market value even where the prospects of possible successful development are too speculative to be reasonably probable. The evidence, later quoted, shows there are hundreds of sales of lessor and lessee rights in lands with such speculative value.
Here the mere surface indications led to leases given to the Cal-Bay Coloration for which the State Corporation Commissioner permitted the issuance and sale of stock at par value at the valuation of the land at $366 per acre. Here the stock found investors of $250,000 at that value of the leasehold interest in the land.
That such speculative value is provable in such condemnation proceedings has been recognized by the Fifth Circuit in a case concerning such interests in lands in the southern district of the oil producing State of Texas. Eagle Lake Improvement Co. v. United States, 5 Cir., 141 F.2d 562, 564, where it is stated “ * * * a mineral lease is recognized by law as being property having a market value even if it covers undeveloped territory. Where oil interests are involved, a reasonable probability of successful development is sufficient to make leasehold estates of great value; indeed, where there is a reasonable possibility of production in paying quantities, mineral rights are a common subject of barter and sale, and therefore have a definite, ascertainable market value, even where the prospects of successful development are too speculative and remote to be ‘reasonably probable.’ ”
The question remains whether this error in refusing this instruction and the court’s conduct of the case under adversary principles of law caused reversible prejudice to appellants. We think they do.
The district court limited the witnesses as to value to two on each side. Appellants offered the testimony of John H. Wents, Jr., a consulting petroleum engineer and geologist then employed by the Attorney General of the United States in appraisal of California oil properties in a suit in the Southern District of California, in which the United States is a party. He had been employed as a petroleum engineer by the Associated Oil Company, the Marlin Oil Company, the C.C.M.O. Oil Company, the McMillan Oil Company, J. Paul Geddy, who as an individual has controlling interest in the Skelly Oil Company, the Pacific Western Oil Company, the George F. Geddy Incorporated, and a considerable holding in the Tidewater Associated Oil Company, and others amounting to twenty^five operators. In the last five years he had drilled 200 wells.
Wents had also been employed in appraising properties for the Chase National Bank of New York, for the Corn Exchange Bank of New York, for the Citizens Bank of Los Angeles, for the California Bank of Los Angeles. Of these he testified
“Q. By appraisals do you mean properties involving or containing either oil or natural gas or other minerals? A. Or have no potentialities whatsoever.
“Q. Have you made any appraisals for any persons or corporations buying royalty interests in oil and gas leases? A. Yes, I made many of them.
“Q. How many would you say you have made of those in the last five or ten years ? [20]*20A. In the last ten years? Perhaps a thousand.”
It is thus seen that Wents’ wide experience was gained in appraising comparable lands, some in the wildcat area of the metropolitan Los Angeles district (as the land here is in the San Francisco district) and in the San Joaquin Valley from which oil is piped to the bay refineries, and gas piped to the consumers in the San Francisco district. Fie stated that he gave no consideration to the value of the oil leases in the immediate vicinity of appellants. These were leases on land in which no such discovery had been developed and were made before the discovery of commerical gas in appellants’ land, of which the appellants’ witnesses Norris and Bradford testified. The considerations paid in these prior leases well could be ignored by an expert.
Basing his knowledge on sales of speculative valued lands near Los Angeles and in the San Joaquin Valley, he gave to appellants’ land a value much in excess of the government’s experts, who disagreed with the testimony of Norris and Bradford that gas had been found in commercial- quantities. For the royalty interest of ysth of production of one of the appellants’ lessors he gave a value of $298 per acre as against $11 per acre of the government’s witnesses. In addition to his other testimony, elicited by counsel, the following testimony, strongly favorable to the appellants, was brought out under questioning from the court itself:
“Q. In other words, one who* goes into the market to buy a royalty of a lessor would pay for it something that would be less than the total amount that over the years would be returned? A. He would expect interest on his money and a profit on his investment.
“Q. Exactly, so if, for instance, you were buying an oil royalty of a lessor — I think you said you worked for the Pacific Western Oil Company and Mr. Geddy? A. Y es, I have.
“Q. Would you have advised him to have paid presently, that is, at that time, $62,250 for Maria Faria’s one-eighth interest in the oil and gas to be produced from this property? A. Yes, your Honor, because—
“Q. How would you possibly be able to calculate the value of the lessor’s oil royalty without having some production basis upon which to make that calculation ? A. There are hundreds of transactions, your Honor, in oil royalty interests prior to the date when production has been established. In other words, it is a commodity which is bought and sold on the open market.
* * * * * *
“Q. I just want to get this clear in my mind, then, the figure that you have here as to what you would be willing to advise Mr. Geddy, whom I am told is a very experienced oil man, the figure of $65,250 that you would recommend to Mr. Geddy to pay for Maria Faria’s one-eighth royalty interest in these 208.83 [that is $298 per acre] acres is not calculated upon any known factors that have to do with production and the like? A. It is calculated on trading factors in comparable acreage, your Honor. In other words, that is the answer, because we can’t use any other method of approach, and there are hundreds of trades. There are large organizations that deal in that.
“Q. How would you know how to recommend to Mr. Geddy to pay $65,000 for this one-eighth royalty if he did not know what he could expect to get out of the production of gas and oil? A. Your Honor, I am a geologist, too, I could point out to Mr. Geddy the possibility for production on that property and other perperties. I could also point out to Mr. Geddy that the price he would be paying for this royalty on the basis of my calculations would not exceed $25 per acre per cent, some of it much lower, and I could point out to him that the going price for comparable royalties was higher than that figure.
“Q. Perhaps I am getting a little too technical. There are ways, before production actually starts, of determining within reasonable limits from the depths and character of an oil or gas sand actually encountered and drilled through the reasonable probabilities of production from it?, A. Yes, there is.
[21]*21“Q. That is not the case here, of course? A. Yes, it was the case here. The reasonable possibilities for production were known, in my estimation.
“Q. The well had not been drilled to a point where you were able to say that the well had penetrated seventy, eighty, ninety, one hundred or one hundred and twenty-five feet of designated sand? A. In my opinion your Honor-
“Q. But the well had not been drilled to that point? A. Your Honor, may I explain something in that connection?
“Q. Just answer my question first. A. The well had not been drilled to that point at that time. However, your Honor, the well had been drilled to a depth to give us the marker points whereby the geologists could estimate the depth at which things could be encountered with a very fine degree of error.
“Q. It is on that speculative basis that you have stated that you based your valuation of this oil royalty? A. Yes, it is, your Honor.”
This testimony of value, coupled with Norris’ testimony of the discovery of gas in commercial quantities, was made worthless to appellants by the excepted refusal to give the requested instruction regarding the right of the jury to consider such speculative value and the giving of the instruction from which the jury well could infer that they could not consider it.
The form of the refusal was heightened by the further statement of the court to the jury that “The reason why the court has expressed the opinion [that the testimony of the appellants’ experts is ‘incredible’] is that it appears to the court that there is no factual basis presented in the testimony of the expert witnesses for the defense upon which the opinion of value given by them can be said to rest.”
The latter statement was objected to on the ground that it sided unfairly with the contention of the government, which was that there was no discovery of commercial gas in the well. Since there was evidence from which the jury could have inferred such discovery, we agree that the court’s statement was prejudicial. The value given by the apellants’ experienced witnesses cannot be said to be incredible under the doctrine of res ipsa loquitur.
The statement of the court is not an analysis of the evidence. It is stating that no evidence exists of the fact of a gas production giving a saleable value to the leasehold, when the record is replete with such evidence. As was stated in Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321, “This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office. In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it.”
What is there said applies as well where the judge states facts are not in evidence when they are, as when he adds to the evidence.
It is apparent that the only ground upon which Wents’ valuation, based on “comparable” actual transactions, is incredible is that it included speculations as to production, which the court erroneously thought and instructed the jury are not factors in such valuation.
A further prejudicial effect in trying the case, with the court itself examining the witnesses under the theory of want of competency of the evidence of the special and only purposes of the oil and gas leases, namely, to produce oil and gas, and that contemplated future income or speculative production value is not a measure of condemnation value, appears from the court’s conduct of the case in its examination of the witness, William G. Bradford. Bradford had thoroughly examined the well with a view to the purchase of the mineral interests in the land. His experience in determining the oil and gas value of leased land was even broader than that of Wents. It covered not only such lands tributary to gas consumers in the Los Angeles district but he had purchased leases “all over the State of California, here, wherever there has been what we would call a likely place, or a hot spot, as we know it.” Like Wents, [22]*22he regarded the appellants’ oil well as producing gas in commercial quantities and hence disregarded oil and gas leases of other land in the vicinity made before any such a well had been drilled.
Bradford had testified to a value of $200 an acre for the lessors’ 12%% royalty in the product. This in the gas leasing parlance is $3,500 a per cent for the 208 acres involved. The court took over the cross-examination of the witness and the following unfortunate colloquy occurred:
“The Court: Where has anybody in California ever paid a $3,500 a per cent [that is $200 per acre] for a landlord’s interest in a gas lease where the land was not proven? A. Your Honor, I just sold one- — ■
“The Court: Can you answer that? A. Yes, I have bought it and sold it for that.
“The Court: Where was this? A. I sold one, a wildcat drilling, sold it to the Seaboard Oil, a matter of record here, in the last three months, $3,500 for one per cent in three and a half acres.
“The Court: Unproven land? A. It was unproven, your Honor.
“The Court: Will you tell me who made that lease, the parties to it, and when it was done? A. Yes, sir, I will. The Petroleum Corporation and the Producers Oil are owners. They are San Francisco people.
“The Court: Are you telling me that the Seaboard Oil Company pay you $3,500 a per cent for a lessor’s royalty in an unproved piece of land? A. Your Honor, Mr. Scampini—
“The Court: Just answer that question. A. Yes, sir, they paid more than that.
“The Court: The Seaboard Oil Company for a lessor’s interest paid $3,500 a per cent for an unproved piece of land? A. Yes, sir, they did.
“The Court: I just can’t believe you are telling the truth on that.
“Mr. Scampini: Your Honor, I will cite your Honor to the corporation permit on the subject before the Corporation Department I will give your Honor the number of the transaction.
“The Court: I asked a very definite question of the -witness and he has answered it. We will leave it go at that” (Emphasis supplied.)
Quite likely this comment that “I just can’t believe you are telling the truth” about this payment to the witness was not intended to be as harsh as it sounds. It came from an able judge, trying the case in the pressure and strain of a court where for each acting judge there are annual docketings 71% and pending cases 57% in excess of the average load of all the other federal judges. However, there could be no doubt of its likely effect on the jury.
There was nothing in the record to justify this aspersion on the veracity of this witness and nothing was later offered by the government to show that the sale testified as having been made to the San Francisco buyers had not been made. This testimony, if not so impugned, would have been of double value to appellants. It not only showed a wildcat sale for the amount inquired of by the court but also that there were buyers in the San Francisco metropolitan area of such oil and gas leases on distant lands. Moreover, it had the heightened value of being brought out by the court’s own questioning.
This statement was not withdrawn and nothing done to relieve the witness of the charge of lying. Its effect was not cured by subsequently stating to the jury that all the court’s comment was merely its opinion on the “weight” of the evidence. The situation is similar to that in Quercia v. United States, supra, 289 U.S. at pages 469, 471, 472, 53 S.Ct. at page 699, where, as here, the trial judge impugned the integrity of the witness, and the Supreme Court stated of the judge’s privilege to comment on the evidence,
The judge’s “privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards against abuses. The influence of the trial judge on the jury ‘is necessarily and properly of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence ‘should be so given as not to mislead, and especially that it should not be one-sided’; that ‘deductions and theories not warranted by the evidence should [23]*23be studiously avoided/ * * * In the instant case, the trial judge did not analyze |the evidence; he added to it, and he based his instruction upon his own addition. * * * He did not review the evidence to assist the jury in reaching the truth, but in a sweeping denunciation repudiated as a lie all that the accused had said in his own behalf which conflicted with the statements of the government’s witnesses. This was error and we cannot doubt that it was highly prejudicial.
“Nor do me think that the error mas cured by the statement of the trial judge that Ms opinion of the evidence mas not binding on the jury and that if they did not ■agree with it, they should find the defendant not guilty. His definite and concrete assertion of fact, which he had made with all the persuasiveness of judicial utterance, as to the basis of his opinion, was not withdrawn. His characterization of the manner and testimony of the accused was of a sort most likely to remain firmly lodged in the memory of the jury and to excite a prejudice which would preclude a fair and dispassionate consideration of the evidence. * * * The judgment must be reversed.”3 (Emphasis supplied.)
When the appellants offered to produce the authorization of the California Corporation Department of this particular sale in San Francisco, the court made a second unjust remark which the jury must have regarded as taking sides with the government. Concerning this second deprecatory comment on the Corporation Department, the record is
“The Court: Well, I do not know what has happened to our Corporation Department in the State of California. That is all I can say.
“Mr. Scampini: If it please the Court, the Seaboard Company—
“The Court: I am sorry to have made this comment. I will tell the Jury to disregard it. It is just a comment of the Court.
“Mr. Scampini: I ask now to offer evidence in support of the statement of Mr. Bradford in answer to your Honor’s question, and I also protest for the purposes of record, your Honor’s comments in respect of the Corporation Department as being prejudicial to our case before this Jury.
“The Court: I will tell the Jury to disregard the Court’s statement. The comment of the Court was on the weight of the evidence and the Jury is not bound by it. * * *” (Emphasis supplied.)
This .correction of this aspersion on the Corporation Department left in emphatic contrast the uncorrected aspersion on the veracity of the witness Bradford.
Here,- to the excepted refusal of the court to instruct the jury that the speculative value of leases of such land could be considered by the jury, is added such contemptuous treatment of a witness of that value.
It is seen that from the testimony of Norris and Bradford the jury could infer that here was a first well close to San Francisco which produced gas in commercial quantities. There was no corresponding development near the condemned land and hence no sales of leases on nearby lands for a basis of valuation. Lease transactions prior to any nearby discovery of gas in commercial quantities properly could be ignored in determining values after such discovery.
In this situation, the government claims that persons familiar with the value of such leases of lands with wells of proven profit, speculative in amount, of which there is here evidence, in the area producing gas for Los Angeles and the San Joaquin Valley producing gas for San Francisco are not competent witnesses as to the value of such lands. This contention is tantamount to saying that if the testimony of such witnesses is not competent, no expert valuation testimony can ever be given in a field which has its first profitably producing gas well.
We do not agree. The contrary has been stated in Montana R. Co. v. Warren, [24]*24137 U.S. 348, 354, 11 S.Ct. 96, 97, 34 L.Ed. 681, “* * * The witnesses whose testimony is complained of, all testified that they knew the land and its surroundings; and many of them that they had dealt in mining claims situated in the district, and had opinions as to the value’of the property. It is true, some of them did not claim to be familiar with sales of other property in the immediate vicinity, and the want of that means of knowledge is the. specific objection made in the supreme court of the territory to the competency of those witnesses. But the possession of that means of knowledge is not essential. It has often been held that farmers living in the vicinity of a farm whose value is in question, may testify as to its value, although no sales have been made to their knowledge of that or similar property. Indeed, if the rule were as stringent as contended, no value could be established in a community until there had been sales of the property in question, or similar property. After a witness has testified that he knows the property and its value, he may be called upon to state such value. The means and extent of his information, and therefore the worth of his opinion, may be developed at length on cross-examination. And it is fully open to the adverse party, if not satisfied with the values thus given, to call witnesses in the extent of whose knowledge and the weight of whose opinions it has confidence.”
Here in the last analysis the testimony is as to the value of leases producing gas from nearer and more distant fields to be transported to both metropolitan areas, where it is sold and consumed. Experience in the values of leases in the San Joaquin area which supplies gas to San Francisco, clearly qualifies one to testify regarding commercial gas leases, testified as proven, which are nearer San Francisco and where the gas has less distance to be transported for sale in the market of their consumption. So also a valuation expert on leases of gas supplying one of California’s metropolitan areas is qualified to advise on leases supplying another California metropolitan area. Since the whole state is the market for the leases’ gas and oil, the opinion of their value by persons familiar with the sales of such leases is much more than the “guess by informed persons” referred to in United States v. Miller, 317 U.S. 369, 375, 63 S.Ct 276, 280, 87 L.Ed. 336, 147 A.L.R. 55.
Appellee cites cases stating the wide latitude of a trial court in excluding expert testimony. With these cases we. agree. The trial courts should have a wide latitude in excluding evidence of remote relevance and equal freedom in commenting upon the evidence which, as here, the court admitted. However, that freedom is here exceeded in the attack upon the witnesses’ integrity and the statement of the absence of evidence to support the witnesses’ valuations. The refusal to give the requested instruction and the court’s bald statement that there is no evidence, considered with all these other occurrences at the trial, constitute prejudicial error and appellants are entitled to a new trial.
The judgment is reversed as to all appellants.
Reversed.
As appearing in the record from the district court, but misprinted “deprived” in the transcript.