
    INDEPENDENT SCHOOL DISTRICT NO. 492 v. RUDOLPH J. WALETZKI AND ANOTHER.
    209 N. W. 2d 546.
    July 6, 1973
    No. 43235.
    
      Thorson & Mork and James L. Mork, for appellants.
    
      Baudler & Baudler and William J. Baudler, for respondent.
    Heard before Knutson, C. J., and Otis, Rogosheske, and MacLaughlin, JJ.
   Per Curiam.

This is an eminent domain proceeding wherein lands were taken by a school district for school purposes. The owner of the lands and his guardian appeal from the denial of a motion for a new trial. Our careful review of the record in response to appellants’ claims of errors satisfies us (1) that the evidence is clearly sufficient to support the jury’s award of $8,000 for the 8 acres of unimproved land (an increase over the $6,000 awarded by court-appointed commissioners); (2) that the remarks made by the trial judge during cross-examination of a school district’s witness were neither prejudicial to appellants nor unjustified; and (3) that the court’s instructions on the measure of damages, while surely deficient in omitting the owner’s right to be awarded damages based upon the highest and best use to which the property is adaptable, King v. Minneapolis Union Ry. Co. 32 Minn. 224, 20 N. W. 135 (1884), did not result in substantial prejudice since no request therefor was timely made and the record does not support a claim that such omission amounted to an error of fundamental law. Rule 51, Rules of Civil Procedure; Clifford v. Peterson, 276 Minn. 142, 149 N. W. 2d 75 (1967).

Affirmed.

Mr. Justice Yetea and Mr. Justice Scott, not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.  