the plaintiff. The supreme court of California criticised the rule established in this state by the amendment of 1885, in the case of Page v. Fowler, 39 Cal. 412. The reasoning of the court is unanswerable: “In many of the cases it is said that the plaintiff will be allowed the highest price intermediate the taking and the trial, if the suit has been commenced within reasonable time, and prosecuted without unreasonable delay, and no intimation is made as to what the rule would be if the suit were not commenced within a reasonable time; but it is evident that the question of damages ought to be the same in either case. The time of the commencement of the action or trial would not seem to have any natural or logical connection or relation to the question of damages; and the question as to whether a suit was or was not commenced within a reasonable time would rarely, if ever, depend upon any fact which would affect the indemnity to which the plaintiff is entitled. The reasonable time mentioned in the cases cannot mean a reasonable time within which to commence the action independently of the question of damages. It must mean a time within which it would be reasonable to allow the plaintiff to take the highest market price as the measure of his damage. In other words, the rule deducible from the authorities is that, in cases affecting property of, a fluctuating value where exemplary damages are not allowed, the correct measure of damages is the highest market value within a reasonable time after the property was taken, with interest computed from the time such value was estimated.” This opinion was rendered in 1870, and in 1872, in the face of it, California adopted by statutory enactment the same rule as that which has obtained in this jurisdiction since the amendment of 1885. That this rule will work gross injustice is shown by the facts of the California case, and by the fact that, while the wheat in the case at bar was worth 60 cents a bushel when taken, the plaintiff recovered $1.23 a bushel for it under this rule.
What we have said with reference to this rule, touching the injustice it will frequently work, has been said with a view of demonstrating the importance of giving it a strict construction. While the question of reasonable diligence is sometimes a question of fact, yet this court will determine, in the first instance,
