124 N.W. 75 | N.D. | 1909
Lead Opinion
The proceeding in which this appeal is taken is a civil action -brought under the provisions of chapter 36 of the Code of -Civil Procedure (sections 7574-7603, Rev. Codes 1905) for the exercise of the right of eminent domain upon certain real property belonging to the defendants. The use for which the condemnation of the property is sought is a right of way upon which to construct, maintain, and operate a telephone and telegraph line. The real property brought in question by the proceeding is situated in Grand Forks county, and, in the case of each defendant, abuts upon a public highway 4 rods or 66 feet in width. The right of way sought to be condemned is included within a strip 8 feet in width wholly within the limits of the highway immediately adjoining the property line of the defendants. The line of poles as planned by.the plaintiff will be set midway in this 8-foot strip, 4 feet from the property line of the defendants and 132 feet apart, or about 40 to the mile. Prior to the time the action was brought the board of supervisors of the civil township having control of the highway duly granted to plaintiff the right to occupy the highway for the use mentioned. This action is brought for the purpose of condemning the interests of the defendants in the strip of land to be used as a right of way. Each of the defendants has made answer, and alleges that a damage will accrue to him and to his abutting land by the taking and use of an 8-foot strip in the location described for a telephone and telegraph line. The question of the amount of compensation to -be paid each of the defendants for hi's interest in the land condemned to such use, was submitted to one jury with a stipulation that a separate verdict might be rendered and a separate judgment rendered in each case. In the case of the defendant Cosgriff, the jury found that the value of his right and interest in the land embraced in the highway and taken by plaintiff was the sum of $15-; that the damage to his abutting property was the sum of $50, and the detriment or damage to certain trees growing upon a portion of the tract abutting the highway was the sum of $20. Judgment was entered upon this verdict, and
The defendant Cosgriff testified as a witness on his own behalf, and stated that the highway abutting his land along which the right of way sought to be condemned extends is put to public use by pedestrians and carriages only for a width of about 10 feet, or 5 feet on each side of the medium line, which leaves a strip between the traveled portion and his property line of about 28 feet not traveled upon. He was then asked this question: “Q. Have you in the past been in the habit of using that 27 or 28 foot strip for agricultural purposes?” The question was objected to by plaintiff as immaterial, irrelevant and incompetent in its bearing upon the issue of the value of the land to defendant. The attorney for defendant thereupon stated: “I propose to show what has been the regular uniform custom in the past as to the use of that strip as having some bearing upon the value at the present time and its probable value in the future.” The objection of plaintiff was thereupon renewed .upon the same grounds and was overruled by the court; and the defendant answered the question in the affirmative.
The use of a highway for the planting, growing, and gathering of a crop has rather the character of a permanent appropriation than of the temporary and reasonable use permitted to an abutting landowner. So, whether or not, as contended by plaintiff, defendant has incurred liability under a penal statute by his intrusion upon and interference with the highway, it is readily apparent that he exercised such privileges upon those portions of the highway not used for travel, not as a matter of right, but wholly > through indulgence of the road supervisors. Elliott, Roads & Street (2nd Ed.) p. 694. The highway is dedicated to purposes of travel, and defendant, in his use of it for agricultural purposes, is, at best, a trespasser without any right that can be recognized in law or con
The defendant was then asked: “Q. Now, Mr. Cosgriff, understanding that the company desired to condemn ^this eight-foot strip next to the south line of the highway for the uses and purposes of a telephone line, with all the poles, cross-arms, guy wires, guy poles that are usually used in connection with the construction and maintenance of such a line, have you any opinion as to the value of that right or easement' so taken?” Objection was made to this question on the ground that the material point was the value of the property condemned, and not of the easement or right taken by the plaintiff, which objection was overruled by the court, and the defendant answered: “A. Well, it is worth at. least $150.” Shortly afterward one Buttree, a witness for defendant, was asked: “Q. It is in evidence here, Mr. Buttree, that the telephone company, the plaintiff in this case, desires to condemn for right of way purposes on that line for its poles, its cross-arms, its wires, guy poles and guy wires, and the use in a strip of land eight feet in width and, so far as this land is concerned, half a mile in length. Have you any opinion as to the value of the rights sought to be acquired by the plaintiff for the purposes that I have mentioned?’’ This question was objected to as irrelevant, immaterial, and not the proper measure of damages, and after the objection was overruled by the court the witness answered, “Yes.” Counsel then stated: “The question is, Mr. Buttree, the value of the right taken from the defendant — that is, of his interest there under the circumstances — in the strip • which the telephone company is seeking to condemn for its right of way uses?” This statement was not responded to by the witness, who inquired if any title would be
The measure of damage for a taking of property in exercise of the right of eminent domain is the value of defendant’s interest in the land at the time of trial and the damage at that date sustained by its appropriation to the uses of the party condemning. Rev. Codes, 1905, 7596. The evidence bearing on this point must therefore be directed to the present,.and not to the future value of the interest condemned; to its value for uses to which it was or could be applied or for which it had some natural adaptation or special fitness, not to its value -to plaintiff at the time of or after the taking or for the purposes to which plaintiff expected to put it. The questions referred to were properly objectionable, in that the point to which the attention of the witness was directed in each case seems to be either thé value of “rights sought to be acquired by the plaintiff” or of the easement after the appropriation or its value under a future, and not the present, condition. Lewis on Eminent Domain (2d. Ed.) 478-479; Burt v. Wriggleworth, 117 Mass. 302; Union Depot Street Ry., etc. Co. v. Brunswick, 31 Minn. 297, 17 N. W. 626, 47 Am. Rep. 789; City of Santa Ana v. Harlin, 99 Cal. 538; 34 Pac. 224.
The defendant Cosgriff testified that for a distance of about 30 rods the right of way sought to be condemned upon his land extends through a grove of trees growing upon or near to the bolder of the highway. These trees are cottonwood and box elder, about 20 years old, in healthy condition, and average from 50 to 60 feet in height. The outside row of trees is set within the highway at a distance of about 7 feet from the property line, and the number of trees within the grove that are within reach of the poles, wires, and cross-arms which plaintiff proposes to place on the right of way sought to be condemned number between 40 and 50. In order to place the telephone line, it will be necessary to cut off the tops of two different trees and a few of the branches of others. Some of the trees which defendant claims are affected by the' wires and cross-arms are entirely outside of the limits of the highway.
At the close of the testimony the plaintiff requested, and the court refused to give, an instruction to the jury as follows: “That the defendant has no absolute right of user in the right of way, the right of user was vested in the state under the congressional grant for the right of a highway, and the state, acting through the board of supervisors, has granted permission to the plaintiff for the construction of the line.” The plaintiff also requested,. and the court refused to give an instruction in these words: “Under the undisputed evidence, the value of the defendants’ interest in the land sought to be condemned by the plaintiff for use by it in the construction of its telephone line in the highway in front of and along the defendants’ land is merely nominal, and I instruct you under this element of damage to find for the defendant in the sum of one dollar.’ The defendant requested several other instructions involving substantially the same principles, and, upon the refusal of the court to give any of them, took proper exceptions and now presents these refusals as error of law.
In instructing the jury as to the measure of damage the court then charged that such damage or detriment is made up of elements to be considered under two heads, viz: The reasonable present cash market value of the land actually occupied by plaintiff for the use and purpose proposed, exceeding in no instance the present market value of the entire 8-foot strip, taking into consideration that such strip is within the limits of a public highway and subject to a public use for highway purposes; that in no instance
The contention of plaintiff, suggested by the specification referred to that the placing of a telephone and telegraph line upon the land already dedicated to highway purposes is not an additional servitude entitling the owner of abutting property to compensation, is disposed of adversely .to its view by former decisions of this court. And the court, as at present constituted, is not disposed to disturb principles announced in well-considered opinions which may now be regarded as settled law. Donovan v. Allert, 11 N. D. 289, 91 N. W. 441, 58 L. R. A. 775, 95 Am. St. Rep. 720; Cosgriff v. Telephone Co., 15 N. D. 210, 107 N. W. 525, 5 L. R. A. (N. S.) 1142. Neither are we disposed to hold that the right of the owner of property to compensation under such conditions is merely nominal. The damage to the owner, in view of the existing servitude and the further use to which the telephone company may wish to subject it, may- be small even to insignificance; but it is nevertheless substantial in the sense that he is entitled to recover a sum sufficient to duly compensate him for all the damage actually sustained under the conditions. The instructions requested by plaintiff were, therefore, properly refused, and the instructions given by the -court upon the measure of damages. seem to have fully and fairly stated a rule which our judgment approves and which has the sanction of much of the later authority. City of Grafton v. St. Paul, etc., Ry. Co., 16 N. D. 313, 113 N. W. 598,
The assignments of error not passed upon by this opinion either present questions substantially the .same as those disposed of or which are not likely to arise upon a second trial of the action. For the errors mentioned the judgment is reversed and a new trial ordered. The same order will be made in reference to the judgment in favor of each of the defendants.
Concurrence Opinion
(concurring). I concur in the result arrived at in the opinion of Judge Ellsworth, but do not agree to all that is said in that opinion. The measure of damages of the defendant for the 8-foot strip in the highway actually taken by the plaintiff is set forth in that opinion as follows:
“The reasonable present cash market value of the land actually occupied by plaintiff for the use and purpose proposed, exceeding in no instance the present market value of the entire 8-foot strip, taking into consideration that such .strip is within the limits of a public highway and subject to a public use for highway purposes; that in no instance could a greater sum be allowed as damage than would be allowed if the highway right of user was not upon the land so sought to be condemned.” This measure of damages, in.ferentially, at least, might lead the jury to believe that the defendant was entitled to the full market value of the land so taken, when, as a matter of fact, it was already in use for highway purposes, and the defendant had at best only a reversioner's interest. In most cases the damage to his interest would be merely speculative, and not more than nominal. It seems to me that a more correct measure of damáges would be the reasonable present cash, market value of the defendant’s interest in the land actually occupied by plaintiff for the use and purpose proposed, taking into consideration that such strip is within the limits of a public highway and subject to a public use for highway purposes.