The petitioner, a railroad corporation, appeals from the judgment of the County Court confirming the report of Commissioners appointed to ascertain and assess the com*140pensation to the owners of certain lands sought to be appropriated by the company for the purposes of its road, and from the order overruling the petitioner’s motion for a new-trial.

1. Whether, under the provisions of Article VI., Section 4, of the Constitution, an appeal lies to this Court in special cases cannot be considered at this day as an open question. In Knowles v. Yeates (31 Cal. 85), and Day v. Jones (31 Cal. 263), this point was directly presented and decided. In numerous other instances this Court has entertained jurisdiction in special cases. (See cases cited by Mr. Chief Justice Rhodes in Houghton’s appeal, 42 Cal. 68.) In view of these cases we do not think a reconsideration of the question at this time would be profitable, and hold that this Court has jurisdiction of this appeal.

2. It appears from the testimony that the land of the respondent Galgiani and others, his co-tenents, was planted with vines and cultivated and used as a vineyard. During the progress of the testimony touching the value of this land, a witness was allowed, against the objection of petitioner, to give his estimate of 6 c the average annual nett profits per acre from the strip taken by the railroad company.” The evidence was clearly inadmissible. The fact to be ascertained was the value of the land at the time of the taking. It is not allowed to arrive at this fact by proof of the annual nett profits derived from a particular use. The profit for any year would depend upon many and varying circumstances, such as the nature of the season, the price of labor, the condition of the market as to supply and demand in respect to the particular product, etc. A valuation derived from such evidence would be conjectural and speculative, and would not form a proper basis for an estimate of damages.

The error we have noticed affects only the proceedings relative to the land known as the Galgiani tract. We perceive no error in the proceedings concerning the land known as the Vilhac tract.

Order reversed and cause remanded for a new trial as to the respondents V. Galgiani, G. Galgiani, E. Galgiani, G. *141Peri, A. Peri, and L. Silna, and order affirmed as to respondents Louis Vilhac and J. S. Page. Remittitur forthwith.

Mr. Justice McKinstry did not express an opinion.