*1 agent. Contrary finding, trial court's the defendant did testify merely not she read this clause of the contract. She testi might reasoning fied "she have read it." The of the Arkansas adopted applied court could well be and to the facts in this clause, 'Pay "It money case: cannot be said no agents,' printed on statement of the account sent to defend ant, agent, was pay notice or direction to him not to its Scolf. plaintiff and, such, corporation, only was a could trans through agents. its act business Hence words could mean agents pay money no more than to not authorized to re authority instance, it. If ceive Scolf had to collect in the first his authority continued least at until he had done all that was re quired promised of him in connection with the sale. He to come recapitulator, back show the defendant how to run the authority did so. That he had to do this is not denied plaintiff. We hold that under all the circumstances in evidence case that Scolf was clothed authority with the indicia of purchase price, plaintiff to receive the and that the held him agent orders, out as its to travel and solicit but also to money." purchase collect the American Sales Book Co. v. Cow drey, L.R.A.,N.S., Ark. S.W. 700. COMMISSION, Appellant STATE HIGHWAY al., PINNEYet Defendants (171 68) N.W.2d 1, 1969) (File Opinion filed October No. 10597. *2 Wald, Gen., Atty. Special appellant. Von Asst. R. Jack Farrar, Gen., Atty. L. on the brief.

Frank Shultz, Lebrun, Jackson, Freiberg Whiting, Lynn, & Gene of respondent. Rapid City, for Presiding Judge.

BIEGELMEIER, possession and here asks condemnation took of The State trees, buildings, some which were located 19 acres on of wells, four dams. After a verdict spring, two 'shallow $8,750 to the remainder taken and for land of question appeals. original the State The main 154 acres tract of refusing give court erred presented the trial is whether duty to mini- I A on a landowner's Instruction State's mize testimony defendants of the before of on behalf taking tract that the on the fact was all based values after graze necessary supply livestock be of water a source

had taking dams was water in the thereafter. and none fore the appears land taken. in the land mainly wells from the importance is an area where rainfall is deficient and the supply may up of water be summed witness the words one got you that "You haven't much if haven't water" and another gold. that water was like After this evidence was admitted the dug State introduced evidence that new wells could be on the $350, land at a cost of in fact test holes had been dug produce which would a sufficient amount of water for such livestock. A, proposed

Plaintiff's Instruction I which the court refused give was: "The landowner has a to minimize his dam- *3 ages and to use all steps reasonable exertion and to himself, avert, protect practicable, and as far as the in- jurious taking. consequences However, of the ex- penses good which the landowner and in loss, faith incurs in an effort to minimize his are to be computing taken into compensation account in the to be awarded him." ruling

We conclude the court erred in so as the in struction was a correct statement of the law and was based on testimony the described in behalf of the State which the court properly had Highway admitted in evidence. State Commission Hayes Estate, 27, 680, v. approved S.D. 140 N.W.2d the ad mission in necessary evidence of costs claimed to restore the taking, to its condition before the where the court wrote: rule, determining

"As a in the diminution taken, in market value of the proper land not it is to expense necessary take into consideration the made by improvement, 164, 29A Eminent Domain C.J.S. advantageous in order to restore the land to its most use, Am.Jur., Domain, 269, adjust- Eminent or in ing changed brought by it to the conditions about taking." quoted Concini, County court then from Pima v. De 79 Ariz.

154, 285 P.2d 609:

" arriving in the market rule also is that at 'The damaged land which has been the exercise value of right right of eminent domain the court has a which, possible expenditures admit if ex- evidence " damages.' pended, would diminish the argument jury The admission of such evidence and party without an instruc- would be of little avail to a thereon expenditures, and while admissible tion as to its effect.1 These determining jury diminu- proper to be considered taken, must not exceed tion in market value of the land taking. in market value and after the How- the difference before Estate, ever, Highway Hayes said in State v. Commission guide ful- that would not occur in the instant case. This just restoring purpose owners to as fills the taking. High good they position prior State were Fortune, 302, 675, way Commission 77 S.D. 91 N.W.2d A.L.R.2d and v. American Commission Mem Parks, Inc., orial 82 S.D. 144 N.W.2d 25. Noble, 1951, City County

In of Denver v. Colo. defendant, building 637, plaintiff 237 P.2d claimed irrigation damaged road, destroyed con ditch used for $9,000 property. dam veying her awarded ages though owner could obtain the water there was evidence the lowering *4 expense by $200. The a culvert at an of about court contrary Ap reversed because of inconsistent instructions. " stating duty proving instructions it was her 'to take one of the mitigate damages'" steps necessary the it all reasonable wrote: mitigate duty plaintiff her dam-

"It was of constructing ages, so, reasonably by do if she could convey lateral water to her land." another ditch or Appeals of New York reached a similar con- The Court of drilling damages duty a well to minimize as to clusion gave Hayes Estate, v. an instruction Commission trial court such 1. The “complete and accurate”. this said was which court Mayes State, 1966, Company 18 N.Y.2d 277 N.Y.S.2d 393, 223 N.E.2d 881. The Court of claimant Claims had allowed $200,000 being for loss of water caused a road built over a spring portion pond. of a This award was based on the an- buying village nual cost of public supply from the aof 20-year period. over a There was evidence a well could be $14,000 drilled on claimant's for around which would produce rejected sufficient water. The court first a contention * * * speculation justify involved "too much the ex- pense" and then said: Judge long ago,

"As Selden observed there rests seeking damage making party duty on a 'the active of light injury reasonable exertions to render * * (cid:127) possible' "Nevertheless, seeking damages party is under to make a 'reasonable effort' to avoid conse- * * * quences is, complained indeed, of the act of acceptance a rule of recovery may broad that 'No injured might person had for losses which the (25 prevented expenditures' reasonable efforts and Damages 698; see, also, p. 29A Emin- § C.J.S. C.J.S. 655)." 155, p. ent Domain § ford, Burleigh County, Accord as to to build a Little v. N.D., opinions apply 82 N.W.2d 603. The above what seems to general specific be the rule to fact comparable situations case at bar.2 "mitigation damages"

Perhaps it should be that added recognized subject. is well law on Am. Jur.2d, Damages, through seq. 200 et There and in § phrase is said to be one of the limitations on the amount recovery; may party may it be stated that a dam- recover ages which he could have avoided. The cited text precisely denominates efforts these more 2. In ^[26] § 14.22, and 27 addition to the citations p. 520. Am.Jur.2d, Eminent in Domain, §§ 155, 314, *5 Commission and 4 Nichols on v. Hayes Estate, Eminent Domain, see 316 consequences and that often it is

as the doctrine of avoidable damages party expressed his or as of a as a enhancing to avoid obligation reasonable action to take an expressions of the doc- "Such statements are inaccurate trine ^[*] ^[*] ^[*] because ^[*] ^[*] ^[*] the failure to take damages limit affirma- reasonable action to creates no right anyone. tive result of such a failure is that the court will not allow for those con- plaintiff sequences injury it which believes Am.Jur.2d, Dam- avoided." could ages, 30. § probably to discuss the nice

It is an exercise in semantics early "duty" ties of the word in the instruction. In Damages, 90, work, on Fourth Ed. 88 and uses Sutherland §§ Jury "duty". Pattern Instruction 33.02 the word South Dakota Mitigate", "Damages Property—Duty states under the title — damaged ordinary owner of the "must exercise the title care the California to minimize" "Duty Jury Mitigate" existing, Instructions, states the owner "is and to BAJI prevent (5th Ed.) bound further, damages; No. 14.68 under ^[*] * ^[*] injuries damages" personal minimize while as to in No. 14.67 "duty" "duty" it states it is his to do so. The word likewise is Am.Jur., Forms, Damages, Am.Jur., Pr. used in Pl. and 7:86. In 15 while the text states Damages, the title is "One "Duty who is to Prevent or Minimize injured ^[*] * ^[*] is Damages" bound diligence exercise reasonable care and to avoid loss or to mini resulting damage". (Emphasis supplied) mize or lessen the Sec "duty" ap- tion 40 thereof uses the term text. To 27 is from, Chicago, Burling quoted pended which this court note Wheaton, Quincy Company ton & 76 .S.D. Railroad 868, approving principle. N.W.2d the rule in In note will quotations using found citations from cases the various mentioned, meaning. terms all are in ap effect the same - Am.Jur.2d, Damages, pears this note led to the text in 22 §§ act, person supra. It is clear that if a must or is bound to do an it is a to do so. *6 Supreme discuss

Two the North Dakota Court decisions of subject. Meisner, 1957, N.D., opinion, In the first Nicola Am.Jur., 702, quoted of 15 84 N.W.2d the court Sections 27 and 40 Damages, Michigan opinions and from which used and Nebraska Oil, Inc., 1966, "duty". the term Thereafter in Stetson v. Investor's N.D., 349, given compared 140 N.W.2d the court an instruction with No. 19 refused. It wrote:

"The court's instruction sets forth a statement of the general relating damages, rule or, called, as it is sometimes the doctrine of avoidable consequences. requested Investors' No. instruction states another version same rule. This language approved court has used the trial court language approved in its instruction and has also requested used Investors in its instruction No. 19. Meisner, N.D., 702, Nicola v. N.W.2d 705. The lan- guage substantially in Nicola states the rule as found court's instruction and then states another ver- language substantially sion of the same rule which is requested used in Investors' instruction No. 19. The Nicola recognized case that the version of the rule found in In- vestors' instruction No. 19 is another statement of the same rule found in the trial in- court's choosing struction. The trial court did not err in one rejecting version of the rule and the other when both equivalent." versions were necessary "duty"

It is not to decide if a version or an "avoid- given. consequences" able version should have been The re- quested proper equivalent instruction was and it or an should given. have been Colorado, Arizona and New York Courts and this court Estate, Hayes

in State Commission v. ap- did ply proceedings cases, the doctrine to condemnation in the cited Supreme County add the California Court in we Albers v. Angeles, 89, Cal.Rptr. of Los 62 Cal.2d 398 P.2d applied expressly it allow added the doctrine and discussed This does not the efforts made. case involve express opinion to it. that issue we argument mitigation made Some is citing pleaded, 31-19- not in issue as it was not SDCL *7 was among things, (6) requires, support. provision other That taking contain: of shall the declaration "(6) agreement, right Any prior or written memoranda high- way plans specifications proposed for of setting roads, way, forth in detail the access under- drainage facilities, passes, overpasses, and other fea- adjacent to, pertain tures as to the landowner's access crossing proposed under and means of over and together any highway, description with of additional mitiga- rely upon intends to factors which the state damages." tion of requires proposed plans construction show statute

This to those set forth in detail therein items of a class similar so taking will land owner of the effect the have on his to advise the access, relationship etc. It does not to its refer matters in rebuttal of claims made the owner dams, wells, etc., of which such loss will be lost tak- ing clearly and were evident therefrom. refusing

The court therefore erred in instruc- judgment must and it tion and the is reversed. HOMEYER, JJ„

RENTTO and concur.

HANSON, J„ dissents.

ROBERTS, J., concurs in dissent. (dissenting).

HANSON, Judge properly trial court refused instruct on a mitigate damages. ques- landowner's The rule is not application but it has to the facts. tioned County Defendants owned 155 acres of land in Jackson seven miles west of Kadoka. In this condemnation action the acquired 19 acres needed in the construction of Interstate along parcel 90. The taken runs the entire southern section line remaining «destroying property all access from the south. house, store, parcel sheds, taken also included a an old wells, dams, spring, two four stock and over 400 trees. Defend- grassland spring, ants were left with 135 of acres bare without a wells, dams, or trees. allegation mitigating

There was no matters in the Declara- Taking by tion of the State at commencement of this action as 31-19-23, required proof SDCL nor matter which justify would an instruction relative to a landowner's mitigate. Apparently the State contends the defendants should drilled a well on their in order to re- However, duce or minimize it failed to show there *8 Engineer potable was a source of A available. Soils Commission, the State testified he drilled three 1/2 depth approximately inch test holes to a 35 feet on the land. "wet", dry, The first hole was produced second and the third gallons per «a flow of 1 opinion, of water hour. In his 1/2 provide adequate third test hole would an well for defendants' needs, equipped However, if pump. curbed and with other evidence indicated the test holes drilled the State were all dry at the time of trial and it was not feasible to curb well gallons producing per less than 10 of water hour. Good water gold, County, like was hard to find and the Jackson chance of «obtaining adequate well on property was «ex- tremely doubtful. Under the circumstances defendants were un- duty costly speculative der no to drill test wells in a attempt adequate damages resulting find an source of water to minimize taking prejudicial from the and it would be to so instruct jury. mitigate damages duty A landowner's is not of n application. following

or universal This is reflected in the ex- planatory text statement:

"Although required upon an owner is not to enter undertaking, speculative duty, a doubtful or it is his so reasonably possible, attempt far as to minimize his damages salvaging property what he can from the growing Thus, crops taken. where are severed or dam- aged, duty, opportunity, it is his if he has the to care for also, perishable property. such So it is his to use himself, steps protect all reasonable exertion and avert, injurious practicable, consequences as far as taking. abutting has been held that an prevent injury owner must exercise such care to to his cutting grade property from the down of the of an ad- joining highway, may reasonably expected of a person ordinary prudence under like circumstances.

"While a landowner is not entitled to recover com- damage pensation from the state for which he could avoided, the extent of his depends particular on the facts of the case. corollary requiring "As a to the rule a landowner damages, generally to minimize his it is held that ex- good penses which he and in faith incurs in an effort to minimize his loss are to be taken ac- into computing count to be awarded proceeding." to him in the eminent domain 26 Am.Jur. 2d, Domain, 155, p. Eminent 822. See also Vol. 4. Domain, 14.22, p. on Nichols Eminent 520. support

The cases all the above text statements and no auth- *9 ority majority opinion contrary. is cited in the to the In other words, duty particularly applies the where prevent injury, some remedial or restorative action will deteriora- tion, damage, loss, or destruction to such as growing duty crops, to harvest the construction of dams to flooding, prevent compelling and the like. No such are reasons grassland present in involved action. The bare would not harmed, deteriorate, damaged, injured, destroyed, be or lost be- dig cause actually duty did landowners a to well. The mitigate damages impose actually does not a restore im- provements taken. requested implies

The instruction the landowners had an something. case, only affirmative to do In this it could dig they many exploratory mean should wells. How wells would obligated dig? they "duty" be portion This of the instruction semantics", explained away cannot be as an "exercise in especially jury. When a trial is nullified because of fail- give should, least, requested ure to instruction the instruction at clear, applicable correct statement of the law to the facts. goes jury "any The instruction on to inform the good expenses which the landowner and in faith in- loss, in an curs effort to minimize his to be taken are into ac- computing count in awarded to be him". This justified proper actually would be in a case where landowers expenses incurred remedial or restorative an effort to avoid deterioration, damage, consequential injury, or loss to the re- maining property. expenditures In this case no such there were consequential demand only jury issue in this case for the to consider and deter- property. was mine the before and after value of defendants' argument proof was not restricted manner in its or availability producing of water or the cost it on de- admissible, fendants' land. was all This evidence was ad- court, mitted the trial a reflection on and after before value. parties From the evidence introduced both could de- whether or not was cide available on the land and what could, did, produce They it. it would cost and no doubt take important factors these value into consideration in their deter- harmed, of value. It is difficult to see how the State was mination restricted, give prejudiced or 'failure to instruction which given highly jury. If on retrial it will be would confuse the prejudicial to the landowners.

I would affirm.

ROBERTS, J., concurs dissent.