87 Minn. 91 | Minn. | 1902
Proceedings were commenced in the district court of St. Louis county to condemn a right of way for railroad purposes over and across land owned by defendants, in which commissioners were' duly appointed to assess damages, who made an award assessing and allowing defendant McDougall $1,500, and defendants Duncan and Brewer $1,250. Being dissatisfied with the amounts awarded
1. On the trial of the action in the court below, defendants’ counsel offered the award of the commissioners in evidence, and it was received without objection, — for what purpose, the record does not distinctly disclose, though defendants’ counsel stated in this court that the purpose was to place before the court and jury an accurate description of the property condemned, together with the plats attached to the award, showing the location and situation of the property and proposed right of way. The trial court instructed the jury that they were not bound by what the commissioners found the damages to defendants’ property to be, and that their award should not be considered as evidence on that suhject. This instruction' (i. e., that portion stating that the award of the commissioners was not to be considered by the jury as evidence on the subject of damages), plaintiff assigns as error. There was no exception to the instruction at the time of the trial. It is urged in this court that the award was proper to be considered by the jury on the question of damages, the same having been offered and received in evidence without objection, and that it was reversible error in the court below to withdraw it from their consideration. We are unable to concur in this contention. It was held in Sherman v. St. Paul, M. & M. Ry. Co., 30 Minn. 227, 15 N. W. 239, that the award of the commissioners in such proceedings may be used and referred to on the trial, on appeal, to -explain the location of the line of the proposed road, and to describe the situation of the premises, but that it is not competent evidence on the subject of damages.
It is not claimed by appellant that the award of the commissioners would be admissible if offered upon the question of damages. The contention is that, because it was received in evidence
The situation is substantially the same as though the court had made some unintentional misstatement of law or fact which could have been corrected had attention been called to it at the trial, as was the case in Steinbauer v. Stone, 85 Minn. 274, 88 N. W. 754, though the case at bar is much stronger against appellant, for here the instruction of the court was an accurate statement of the law as generally applied to such cases; and if the special circumstances of this particular case made the evidence proper to be considered by the jury, and it was error to take it from them, the reason why it was error arose solely from a condition not. known to the court at the time and to which its attention was in no manner directed.
2. The property over which the right of way was condemned is composed of the southeasterly portions of lots 1, 2, and 3 of block
“All that part of block twenty-seven (27) in the Bay Front division of Duluth, First rearrangement, according to the recorded plat thereof, that lies westerly of a line through said block parallel with, and at equal distances from, the lines dividing said block from block twenty-six (26) and from twenty-eight (28), saving and excepting so much of said tract as lies within one hundred (100) feet of the southeasterly boundary line thereof, which said property so excepted is hereby dedicated for the perpetual use of a slip or water way for the use and benefit of the owners and occupants of property abutting thereon, together with all and singular, the hereditaments and appurtenances thereunto belonging or in any wise appertaining, but subject, nevertheless, to the reservations, exceptions, and conditions of this instrument. * * * It being the intention hereby to vest in the said party of the second part, his heirs and assigns, forever, the exclusive right to use, occupy, and enjoy the space covered by the above-mentioned lots, as laid down upon said recorded plat of said Bay Front division of Duluth, First rearrangement, and to estop the party of the first part, its successors and assigns, from having or claiming the use or occupancy of said space by nature of riparian ownership or otherwise.”
It was contended by defendants on the trial that this reservation created a perpetual easement in that portion of block 27 thus excepted, for the benefit of abutting property owners, and that as defendants were the owners of block 28, which "lies immediately between that portion of block 27 in which the easement is claimed to exist and the property, sought to be condemned, it gave defend
It is very clear to us that the reservation and exceptions contained in the deed referred to attached to the land, in block 28, and that the easement vested in defendants, as owners of that-block, the perpetual right to use the same in connection with their abutting property. The case is very similar to Winston v. Johnson, 42 Minn. 398, 45 N. W. 958, and controls the question. It is not important whether defendants acquired their title through the conveyance of the improvement company to Miller, or by a tax title or exécution sale. The easement created by that deed attached to and passed with the land, and it was conceded on the trial that défendants now own block 28. They have therefore succeeded to the Miller title and the easement incident thereto. Dennis v. Wilson, 107 Mass. 591; Peck v. Conway, 119 Mass. 546. It follows that the deed was competent evidence, and there was no error in overruling plaintiff’s objection to its admission.
3, It was competent for the parties to show the general nature of the property over which the proposed right of way extends, and the uses and purposes for which it was available; and it was not error to permit defendants to show that it was customary foh railroads fronting on the property to unload freight thereon, to be transferred to lake steamers at the slip or water way.
We have examined, as already stated, all the assignments, and find no reversible error in the record. The damages awarded are; quite large, perhaps; but whether excessive or not, is not presented for our consideration. There is no assignment of error to that effect.
The order appealed from must be affirmed.