105 N.W. 93 | N.D. | 1905
This is an action to recover the possession of certain lots in the -city o-f Fargo, which the city is alleged to have wrongfully taken possession of and excluded th-e plaintiffs therefrom, and for the recovery of damages for th-e value of the use of the lots. The property involved' in the action is known as “Keeney & Devitt’s Third- Addition to the City of Fargo-,” and comprises fourteen lots on Seventh Avenue North. This avenu-e is thirty-five feet wide, according to the original -plat of the city. As traveled and used at present, said- avenue is seventy-five feet -in width, and the additional width is made by using the lots in question. The -city answered and -alleged that the plaintiffs had acquiesced in the taking of tire lots as a street, and' that -the city has the right 'to the possession of the same by prescription, and that the plaintiffs -have no title to these lots and are estopped from
The question of the title to this property is not open to investigation in this action. Nor is the question whether the plaintiffs consented -and acquiesced in the taking of the lots for street purposes open for consideration or adjudication in this suit. These questions were adjudicated in a former suit, brought by the plaintiffs against this defendant to quiet the title of the lots in question in the plaintiffs, and to bar the defendant from claiming any right, title or interest therein. The city was served with the summons and •complaint, and through the city attorney filed a disclaimer of any claim or interest to- the lots in question-. Judgment was thereupon entered adjudging the plaintiffs to be the owners of the lots and further adjudging that the defendant had no right, title or interest to the same. This judgment is still in force and effect, and this court recently affirmed an order of the district court refusing to- set the same aside. Keeney et al. v. City of Fargo (N. D.) 105 N. W. 92. The rights of the plaintiffs to these lots were finally settled by that judgment. The issue tendered by the complaint was the ownership and title to the lots, and judgment was entered adjudging that .plaintiffs were the owners and that the defendant had no right, title or interest thereto.
It is contended by the defendant that the former suit was an adjudication as to the title to said lots -only, and' -that it is not a bar as to the question of whether the plaintiffs consented or acquiesced in the occupation of the street by the city for the construction of sewers, culverts and other improvements. If the plaintiffs in the former suit consented to the laying of the sewers and the making of other public improvements on the lots in question, then the city had an interest in the lots for that purpose. This consent or acquieseense constituted such an estate or interest in the land that, upon pleading and proving it, tire right to quiet the title in the plaintiffs absolutely would have been defeated. Likewise would the right to an unconditional judgment quieting the title
Defendant made timely objections to the questions asked and motions to strike out the answers of witnesses testifying that the rental value of these lots was a certain per cent of their value as fixed by them, as not based upon proper foundation. The answers should have been stricken cult. The answers were based on the rental value of other property not similarly situated with the property in question. To assume that unoccupied vacant property, not shown to have any rental value, has the same rental value proportionate to its value as other property, not of the same character or location, leads to conclusions not necessarily'based on the truth. No invariable rule -can be laid down for ascertaining ithe rental value of real estate of different -classes. The rental value of each- class may be -different, although the value of the lots may be the same. The rental value of these lots should have been shown without relation to the .prevailing rental value of other property not similarly located. The method adopted in this case of establishing the rental value on a basis of a percentage of its actual value has been generally citi-cized. See Woodhull v. Rosenthal, 61 N. Y. 382, and Brownwell v. Chapman (Iowa) 51 N. W. 249, 35 Am. St. Rep. 326.
The judgment is reversed, a new trial granted, and the cause remanded for further proceedings according to- law.