122 Minn. 392 | Minn. | 1913
In judicial ditch proceedings, the court below made its order establishing the ditch and determining the amount of benefits to be assessed against the lands of appellants. Dnder Laws 1905, p-. 303, c. 230, as amended, appellants demanded a jury trial. Their cases were consolidated, and tried together. The result was a verdict in each case fixing the benefits at the exact sum that was assessed by the viewers and determined by the court. The case comes hére on an appeal by each of the two appellants from an order denying his motion for a new trial.
The ditch as established is a branch ditch, starts on land owned by Edmund O’Connor, runs in a northerly direction through land owned by him to a meandered lake sought to be drained in the proceedings, through this lake, through other lands owned by O’Connor that lie to the west of the lake, and thence northerly to the main ditch. Appellant Cunningham’s land consists of a half section lying just east and south of the ditch, which starts on his west section line. Edmund O’Connor died before the trial, and his administrator was substituted.
The jury found expressly that appellant O’Connor was not damaged by the ditch. The only question therefore on this branch of the case, is whether there is sufficient evidence to sustain a finding that O’Connor’s lands that were taken for the ditch were of no appreciable value. While the evidence would sustain a finding of damages in some amount, and it may be doubtful whether it sustains a finding of no damages, as there must be a new trial on another ground, we do not decide the question. We make the same statement as to the claim that O’Connor was entitled to an allowance for a bridge across the ditch. For the same reason it is unnecessary to decide whether the evidence supports the verdict that appellant Cunningham’s land was benefited by the ditch, or as to the amount of benefits found against the lands of either appellant.
We do not discuss or decide the above questions, for the reason that we have reached the conclusion that there must be a new trial
The case is controlled by the decision in Dodge v. County of Martin, 119 Minn. 392, 138 N. W. 675. The instructions given in the present case are in no essential respects different from the instructions held erroneous in the Martin County case. Here, as there, they were abstractly correct, and there can be no suggestion that they were intended to influence the jury. But we are unable to escape the conclusion that they probably did have that effect. It is fair to the trial court to say that, at the time of the trial, the decision in the Martin County case had not been rendered. We assume that the sole object of the trial court was to explain the nature of the proceedings to the jury, but in doing so, unnecessary emphasis was placed upon the facts that the viewers had made the assessment, and that it had been, after a full hearing, confirmed by the court.
In addition, when counsel for respondents stated in his argument to the jury that the case had been before threshed out by the court and the assessments approved, the error was not cured by the court saying to the jury that the case was to be determined by the “evidence offered and submitted” here upon this trial. The court did not anywhere tell the jury that they could not consider the evidence that the viewers had assessed the benefits at a certain sum or that the court had approved their action, though it did say that the jury was not. bound by the decision of the viewers or of the court. It is clearly the law that the jury is not only not bound by the action of the viewers or the court, but that such action should have no effect upon their decision. As stated by the Chief Justice in Dodge v. County of Martin, supra: “If in any such case the jury by the charge of the court, or otherwise, is led to the conclusion that consideration and respect should be given the assessment made by the viewers, the
Order reversed on each appeal, and new trial granted.