42 Minn. 541 | Minn. | 1890
This was an action for damages for a trespass upon the land of plaintiff. The trespass complained of was excavating, for the length of half a mile across plaintiff’s farm, two parallel ditches, 30 feet apart, and throwing the earth between the ditches, thus forming an embankment. The defence was that the locus in quo was a public highway, and that the act complained of was lawfully done, in building and grading the road. It is neither necessary nor practicable to follow appellants’ counsel through his 50 assignments of error. The issues in the case were very simple, being — -first, the existence or non-existence of a highway; and, second, if there was no highway, the amount of plaintiff’s damages; and the determination of a very few general propositions will dispose of every question raised on this appeal.
1. The appellants attempted to prove the laying out of a highway under the statute, but utterly failed, and there is now no claim that
2. Another line of assignments of error relates to the admission of evidence of injuries to the land which had not accrued at the commencement of the action or at the time of the trial. These assignments are all based upon the erroneous idea that this was in the nature of a continuing trespass or nuisance, which would give the right to bring successive actions for resulting injuries as they accrued. Such is not its character. The alleged trespass consisted of a single tortious act upon the land of the plaintiff, the result of which will continue without change from any cause but human labor; and the plaintiff, having no means to compel the defendants to remove the cause of the injury, can only cause it to be done, if at all, by the expenditure of his own means. This constitutes a single trespass, for which there is only a single right of action, and in that action the injured party is entitled to recover compensation for all damages to the property resulting from the trespass, whether present or prospective; and in respect to the latter, the rule is that he can recover for such as it is shown with reasonable certainty will, result from the wrongful act complained of. 1 Suth. Dam. 195, 196; 3 Suth. Dam. 372 et seq.; Pierro v. St. Paul & N. P. Ry. Co., 39 Minn. 451, (40 N. W. Rep. 520.)
3. The appellants also complain that the charge of the court confined the consideration of the jury to the question whether the locus in quo had become a highway under the statute by six years’ use, to the exclusion of the question of a common-law dedication within that period. It is undoubtedly true that it does not require any particular length of time to effect a common-law dedication. All that is required is an intention to dedicate, and an act of dedication on part of the land-owner, and an acceptance by the public. But, in view of the evidence in this case, it is difficult to see how there could have been any common-law dedication, if this had not become a highway under the statute by six years’ use, etc., for, if there was ever any common-law dedication, it must have been effected more than six years before the alleged trespass. But, however this may be, it is immaterial how the court instructed the jury on that question, for the
4. Under numerous assignments of error, counsel contends that, both in the admission of evidence and in his charge to the jury, the court erred as to' the measure of damages, and proceeded upon the theory that they were to be estimated upon the basis that these ditches and embankment must remain there forever, and that this strip of land was to be permanently used for highway purposes. If the', record shows this, the court undoubtedly erred; for nothing is clearer than that neither the title nor right to the permanent use of the property would pass to the public by the recovery of damages in this case. It is also clear that, if it appeared that the cost of restoring the land to statu, quo by levelling the embankment and filling the ditches would be less than the difference in the value of the land occasioned by leaving them in their present condition, the cost of restoration would be the measure of damages. The case shows that the method pursued by the plaintiff on the trial was to examine his witnesses as to the character and size of the ditches, how they obstructed the use and cultivation of the farm, and how they gathered surface water from adjoining land and threw it upon that of plaintiff, and, finally, to ask them, in substance, “How much less is that farm worth with those ditches and turnpike than it was before ?” or “How much less would it be worth from the making of the turnpike and ditches than it was before ?” to which defendants objected as incompetent, and not the proper measure of damages. When defendants introduced rebutting evidence upon the question of damages, they asked the same questions of their witnesses; and neither in their own case, nor on cross-examination of plaintiff’s witnesses, did they inquire what it
As already stated, this being a single trespass, and the plaintiff being the owner of and in possession of the land, he was entitled to recover in this action all damages resulting from the injury, whether present or prospective, affecting the value of the land. As a general statement of the rule of damages to wit, the difference in the value of the land, the questions propounded to plaintiff’s witnesses and the charge of the court were correct. It is true that this difference in value was not to be estimated on the basis that this land was to be devoted permanently to highway uses, and it is equally true that, if the cost of restoring the land in statu quo would be less than the diminution of value that would result from letting the ditches and turnpike remain, the former, and not the latter, would be the real amount by which the actual value of the land would be considered as diminished. It is also true that' neither the questions asked the witnesses, nor the charge of the court, defined the basis on which this difference in value was to be estimated; but it is not true, as defendants claim, that they assume an erroneous basis. The most that can be said is that they might be misunderstood. But, if counsel thought that witnesses were making their estimates on an erroneous basis, it was for him to ask the court to instruct them on the point, or develop their mistake on cross-examination; or, if he thought that the cost of restoring the land to its former condition would be less than the injury to the value of the land from letting the ditches and embankment remain, it was for him to show it. The court could not assume this to be so, in the absence of proof. Karst v. St. Paul, S. & T. F. R. Co., 23 Minn. 401. See, also, Seely v. Alden, 61 Pa. St.
What has been said covers all the points which we deem worthy of special consideration. We find no error in the record, and the result is that the order denying a new trial must be affirmed.