15 Minn. 230 | Minn. | 1870
Bj the Court In 1868, the railroad company presented a petition, in pursuance of the statute, for the appointment of commissioners to ascertain and determine the compensation to be paid to Michael Doran for the right of way over certain lands of the petitionee, described in the petition: commissioners were appointed and made report fixing the compensation in damages. From this report of the commissioners, Doran appealed to the district court, when the case was tried by a jury, and resulted in-finding for' the appellant as follows :
On the farm of said Michael Doran we assess the damages at $1200 ; on lots 3, 4 and 5, in block 22, $130 ; lots 10, 11 and 12, in block 18, $170 ; lots 15 and 16 in block 42, $350. Whereupon the railroad company moved for a new trial, which was denied, and from the order denying a1 new trial, it appealed to this court. The attorney for Doran, the respondent in this court, moves to dismiss the appeal, on the grouud that the statute does not authorize an appeal to the supreme court. . We are of opinion that the motion to dismiss the appeal must be denied. The order -refusing a new trial, denies the right to either party to have any further hearing or trial of the questions at issue in the proceeding, and substantially disposes of the case. It is therefore a final order affecting a substantial right, made in a special proceeding and is appealable under sub. div. 6th, of sec. 8, ch. 86 of the General Statutes. In McNamara vs. Min. Central R. Co. 12 Min. 394, the order appealed from was an order granting a new trial, which, it is held there, does not come within the statutory provision above cited, because an order of that kind does not finally dispose of the proceeding, or any question involved in it, but only retains the case in court for a rehearing. The case cited, therefore, does not apply here. But further, the language of the pro
It has already been determined by this court, that in proceedings of this kind, to assess damages, neither the commissioners nor the court, upon an appeal from the commissioners’ report, are necessarily restricted to the lands described in the petition, but that, where the lands described in the petition,'are but a part of a compact tract o'f land, actually used as one farm, and all owned by the same person, under such petition damages may be assessed to the whole tract. W. & St. P. R. R. vs. Penman, 10 Minn., 267.
The reasonableness of the rule we think must be apparent. The proceeding to condemn the land is a proceeding m rem. Where several governmental subdivisions of land are actually connected with, and used and occupied as a ■farm, it is notice to every one that the farm is a unit, and that injury to any part-of it is an injury to the whole.
But if the same owner has two or more distinct and separate, but adjoining farms, through but one of which the rail road passes; (assuming for the sake of the argument, that the company would be liable in a proceeding of this character, for damages to the other farm or farms,) it would be unreasonable to require this company to take notice of damages to lands through which it did not pass, or in the absence of specific notice that the owner of a tract of land through which the road did not pass, claimed damages for
When the parties had rested the case, the appellant submitted to the court a number of propositions in writing, requesting the court to give them in- charge, respectively, to the jury. Among these was the following: “ That in view of the testimony, the court instruct the jury to consider the land described in the report, and that described in the deed introduced in evidence by the appellant, (defendant,) as two separate and distinct farms; ” which the court refused to charge, and instead, instructed the jury : “ that a farm consisted of more or less land in a body, used and occupied as a whole, and that the jury must determine from the evidence, applying the previous instructions thereto,
The .first witness called in the case was Cyrus G. Myrick, who said : <£ I am a surveyor and civil engineer, (the witness was shown two plats, one of the farm premises, the other of the town lots,) and said, I made the plats ; they are correct. ” The plats were then introduced in evidence, with an agreed explanation as to the subdivision of the lots. This was the only testimony in the case at the time the deed referred to was offered in evidence, and was clearly insufficient to connect the land described in the deed, and that described in the petition as one tract or farm; but as it was necessary for Doran to prove both his title to the land, and that all the premises were actually occupied as one farm, (the order of proof is a matter in the discretion of the court) strictly speaking, perhaps the offer of proof as to title, should have been accompanied with a proffer to prove that the premises were actually but one farm, but we think it would not be a wholesome practice to insist on such technicalities; certainly if proof sufficient had followed to authorize the submission of the question to a jury, there would be no error which would affect the case. We think, too, in such case, ordinarily the party objecting to evidence under such circumstances, upon a subsequent failure of the necessary evidence, should call the attention of the court directly to the matter, by moving to strike out the evidence deemed objectionable. But we think, under the circumstances of this case, it was error for the court to refuse to charge the jury in accordance with the request of the appellant, which we have quoted.
An examination of the testimony in the paper book, which purports to contain all the testimony, satisfies us, be
Of the appellant’s witnesses, Jonas Hum, E. R. Smith, George D. Snow, Peter Wilkins, Samuel J. Wise, and William H. Patten, each testifies distinctly, that the farms were separate, and several of them, that they have always been so.
It is with great reluctance we interfere with the verdict of a jury, but in this case there is such an entire absence of evidence to establish the fact that the lands described in the petition and report, and those described in the deed are one farm, and such a degree of evidence that they are in fact separate farms, that we are led irresistibly to the conclusion, that the ]udge should have chai’ged the jury as requested by the appellant, and since almost the entire testimony of the plaintiff’s witnesses as to the value of the land, referred to the whole land, as a single tract, it is impossible to say that the jury may not, in arriving at the damages, have embraced in their calculation the injury to the whole land as one tract; indeed it is altogether probable they did. •
For this error indicated, the order denying a new trial must be reversed.