128 Minn. 66 | Minn. | 1914
Proceedings were duly commenced by appellant railway company, under chapter 41, G. S. 1913, for the condemnation of certain land for right of way purposes. Commissioners were appointed, and they assessed and awarded to respondent, Goodspeed, the sum of $1,800, as compensation for injury and damage to lands owned by her and taken by the company for the purpose stated. She was dissatisfied with the award and within the time allowed therefor duly appealed to the district court, specifying in the notice of appeal that the ground thereof was inadequate allowance of -damages. The cause thereafter was, in conformity with the rules of practice of the Hennepin county district court, placed upon the calendar for trial. Before the cause was reached for trial, and after the expiration of the time for any further appeal from the award of the commissioners, respondent dismissed her appeal by a notice in writing served upon the company and filed with the clerk of the district court. If she was entitled to dismiss, the notice was effectual for that purpose. Thereafter she applied to the court for an order confirming the repoi*t and award of the commissioners, and the application was granted. The company appeared in opposition to the application and appealed from the order granting it. The opposition to the application was founded on the claim that respondent had no right to dismiss her appeal without the consent of the company, that the attempted dismissal was ineffectual for any purpose, and that the appeal should be tried and determined as though no notice of dismissal had been given.
The only question presented is the correctness of this contention, and whether in condemnation proceedings the landowner who appeals from the award of damages may voluntarily dismiss his appeal, and accept the damages given him, or whether when such an appeal is taken the proceeding is brought before the court for trial de novo, vesting in the respondent to the appeal the right to insist that the issues presented be heard and determined on their merits.
We think, and so hold, that section 7825, G. S. 1913 (section 4195, R. L. 1905), granting to plaintiff in an action the right voluntarily to dismiss his action, applies to and controls the question,
Order affirmed.