28 S.D. 289 | S.D. | 1911
This action was the statutory proceeding, brought by plaintiff, to condemn a right of way over and across the lands of defendant. A trial was had, verdict returned fixing the amount of damages to which defendant was entitled, and judgment for that amount, together- with judgment for costs, entered in favor of defendant. Defendant moved for a new trial, whicll motion being denied it appealed from the order denying a new trial, and from that part of the judgment fixing the amount of damages it should recover, but it did not appeal from the judgment for costs.
The only errors assigned by. the appellant relate to certain rulings of the trial court upon evidence offered by 'said appellant.
Sustaining what we have said, and also furnishing another illustration of the exception to the general rule, we quote the following from Tyler v. Shea, 4 N. D. 377, 61 N. W. 468, 50 Am. St. Rep. 660: “We must be careful not to ignore an important qualification of the general doctrine. Where the reversal of the judgment cannot possibly affect the appellant’s right to the benefit he has secured under the judgment, then an appeal may be taken, and will be sustained, despite the fact that the appellant has sought and secured such benefit. To illustrate this doctrine, we may instance the case of an action to recover $1,000, in which the only defense is a counterclaim for $500. It is obvious that $500 of plaintiff’s claim is admitted. If the defendant succeeds in establishing his counterclaim, thus reducing plaintiff’s recovery to $500,
Inasmuch as respondent claims that the question of value, dependent upon prospective use as town property, was in fact fairly before the jury, we will consider only appellant’s right to show the fitness of the land for apple raising. No restriction seemed to have been placed upon showing fitness of the lands for raising of vegetables, grains, and alfalfa, and we are at a loss to understand the learned trial court’s rulings, excluding evidence of the fitness of land for apple raising. Respondent concedes the correctness of the rule laid down by this court in C., M. & St. P. R. Co. v. Mason, 23 S. D. 564, 122 N. W. 601, wherein it was held that the question to be determined is the market value of the land “for any and all uses to which the land might be put, in view and in light of present business conditions, and those which might be reason
The judgment and order’ denying a new trial are reversed.