(after stating the facts as above). There are various assignments of error, but we are of opinion that the learned judge who tried this case dearly stated the law as to the proper method of ascertaining the damages which the plaintiff below was entitled to recover for the land actually taken. While some evidence in regard to the 1514-acre tract taken by the railroad company was excluded, yet there was a quantity of evidence along the same general line admitted. However, that which was excluded was cumulative only. Such error as the judge may have committed in excluding evidence in this respect is noiiprejudicial, and is not sufficient to work a reversal or a new trial. 'I'lie charge as to the law bearing upon the question of benefits accruing to the residue by virtue of the construction of the road is in harmony with the West Virginia statutes. As respects the measure of damage to the residue — or the 1,500-acre tract not taken — ■ we are of opinion that the learned judge correctly instructed the jury in his general charge.

It now remains for us to determine as to whether the court erred in excluding- evidence offered by the plaintiff below tending to show the extent to which the residue had been damaged by the location of the road. It is insisted that, owing to the close proximity of the right of *652way' to the foot of the mountain, that portion of the residue lying north of the land taken is damaged in that the right of way leaves no available space or ground upon which to erect a plant for the successful operation of a coal mine. From the evidence it appears that the railroad skirts the mountain, cutting off a narrow strip of bottom land adjacent to the river; and there was also evidence tending t'o show that, to successfully develop and operate a coal mine on that portion of the residue, it would be necessary to make an excavation at the foot of the mountain just above the right of way, so as to secure enough level land upon which to erect tipples, shafts, side tracks, etc. It is insisted that, had it not been for the location of the right of way at this point, there would have been ample bottom or level land at the base of the mountain for such purposes, and that, therefore, the location of the right of way damaged the residue to an amount equal to the sum- necessary to excavate and prepare a sufficient space of ground upon which to erect the proposed plant, including shafts, tipples, side tracks, etc. It is further insisted that, if the road had been located along the river bank, there would have been ample room between the right of way and the mountain to permit the erection of tipples, shafts, side tracks, etc., and that thereby the damage to the residue would have been greatly minimized.

The instruction to the effect that the jury was not to consider the land as a coal proposition, or' as coal-producing property, was inconsistent with the other portion of the charge, which the court had submitted to the jury relative to the rule by which they were to be governed in determining the damage to the residue. If the court intended thereby to say to the jury that they were not to consider 'what might be earned by the future operation of a coal mine on a royalty basis, then there could be no ground upon which to base a valid exception. But if, on the other hand, it was intended'to convey the idea that, in determining the damage to the residue they were not to consider the residue as coal lands, then that is an entirely different proposition. There was ample evidence to show that the entire tract of land was underlaid with coal, and this fact gives to this particular land a special value, just as it would a tract of land that was heavily timbered or possessed any other special value: These lands containing merchantable coal, as they do, if it should appear from the evidence that the location of the road has rendered the residue less valuable as coal lands, it necessarily follows that the owner would be entitled to recover such damages as he may have sustained in that respect.

The court, among other things, excluded the evidence of' A. Z. Ritz. The exception to the action of the court in excluding such evidence is embodied in exception No. 13. The evidence excluded is as follows:

“Q. 50- Now, then, considering it as á coal-bearing tract, .1 would like for you to state your estimate of the damage to the residue of the tract by reason of this 15 acres being cut off between the river and the railroad, over and above the peculiar benefits, if any, from the construction of the road? A. X can’t state that. It would be more than I have stated. Q. 51. How much more, Mr. Litz? A. Well, the fact of putting in sidings, and if you would shaft, it would be deeper above the road, you would have to go deeper for the coal, and it is something, I couldn’t say just how much the difference would be.”

*653Under the ruling we have announced the foregoing evidence was undoubtedly pertinent to the issue bearing upon this point. We think that in fixing the value of the “residue” the same kind and class of testimony is competent as applies to the valuation of the land taken; that for the purpose of ascertaining the damage done by the construction and operation of a railroad the jury should first ascertain the value —taking into consideration it's location, capabilities, etc., before the road is constructed, or rather before the right of way was located — • and then ascertain its value with the road located and constructed. From such depreciation as the jury might find is covered by the location and construction of the road should be taken such special or peculiar benefits as accrued to the residue by reason of the construction of the road. While it is true that merely speculative elements of value should be excluded, the capacity of the residue to produce — that is, to furnish — -merchantable coal, in view of the conditions existing and almost sure to be anticipated in the near or immediate future, remove this element of value from the dominion of speculation and make it sufficiently certain to be the basis for valuation. Most of the testimony offered and rejected is competent, not as fixing the measure of damage, but as relevant upon the question of damage; that is, the market value of the land as affected by the location of the road with reference to the manner and means of mining and marketing the coal.

We are of opinion that the court erred in excluding the testimony embodied in exception No. 13, as well as other testimony of similar import, and that it was error to intruct the jury that they were not to consider the land “as a coal proposition or as coal-producing property.” As the case goes back for a new trial, it is hardly necessary to discuss and pass upon each assignment of error. Adopting the principle which we have announced, the court will have no difficulty in controlling the scope of the testimony.

For the reasons hereinbefore stated, the judgment of the cfourt below must be reversed. The case is therefore remanded, to the end that the judgment of the court below be set aside and a new trial had.

Reversed.