Otter Tail Power Co. v. Von Bank

• Decision Date: 02 November 1942
• Docket Number: 6764.
• Court: North Dakota Supreme Court

8 N.W.2d 599

72 N.D. 497

OTTER TAIL POWER CO. v. VON BANK.

No. 6764.

Supreme Court of North Dakota

November 2, 1942

On Rehearing March 18, 1943.

Appeal from District Court, Cass County; Holt, Judge.

Syllabus by the Court.

1. All the issues in a condemnation proceeding except that of compensation are triable to the court without a jury. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570.

2. When an easement is sought to be acquired through condemnation proceedings it must be described with certainty and accuracy so that both the holder of the easement and the owner of the property subjected to it may know definitely their respective rights, and in order that the value of the interest taken and the damage done by its taking may be determined; the complaint in the instant case is examined and held, that the trial court did not err in its construction thereof respecting the extent of the easement sought to be acquired.

3. Where an easement is granted the grantor may, without expressly reserving the right to do so, exercise all the rights of ownership over the property subjected to the easement consistent with a fair enjoyment of the use of the easement. Held, that pursuant to this rule, where an easement for a highway is granted the grantor has the right to use for agricultural purposes that portion of the property covered by the easement and not actually occupied by the highway, provided that he does so in such manner as not to interfere with the grantee's use thereof for highway purposes. Tri-State Telephone & Telegraph Company v Cosgriff, 19 N.D. 771, 124 N.W. 75, 26 L.R.A., N.S., 1171 overruled insofar as that case is inconsistent herewith.

4. Where a grant of an easement for highway purposes is general in its terms, the construction put upon such grant by the parties thereto fixes the rights to be exercised thereunder and limits them to the uses and purposes as determined by such construction. Held, that pursuant to the foregoing rule there was no prejudicial error on the part of the trial court in the admission of evidence as to the use to which the land subjected to the easement might be put by the grantor, in determining the value of the grantor's interest in such land.

5. Where a right or interest in the property of another is appropriated through condemnation proceedings, the owner of such property is entitled to recover the value of the right or interest appropriated and the damage done to the remainder of the property by the appropriation; the record is examined, andheld, for reasons stated in the opinion, that there was no prejudicial error in the court's ruling with respect to the proof of the damages the defendant was entitled to recover.

6. One claiming damages on account of the appropriation of property through condemnation proceedings has the burden of establishing the amount that he is entitled to recover therefor.

7. Pursuant to section 7619, Comp.Laws 1913, providing, where an issue is tried to a jury, that when the evidence is concluded unless the case is submitted on either or both sides without argument, the plaintiff must commence and may conclude the argument the judge for special reasons otherwise directs, it is not error in a condemnation proceeding for the judge to grant a motion to permit the defendant to open and close the argument since the burden is on the defendant to establish the amount of the damage for which he may have a recovery.

8. Instructions examined, and held, for reasons stated in the opinion, that there was no prejudicial error on account thereof.

9. Where an easement for an electric transmission line is taken through condemnation proceedings, the owner of the right or interest subject to such easement is entitled to recover an amount sufficient to compensate him for the damage done to such right or interest.

Conmy & Conmy, of Fargo, and Field & Field, of Fergus Falls, Minn., for appellant.

Roy K. Redetzke, of Fargo, and Charles G. Bangert, of Enderlin, for respondent.

NUESSLE, Judge.

This action was brought to condemn an easement for a right of way for an electric transmission line.

The plaintiff is a foreign public service corporation. It is engaged in the business of manufacturing, distributing and selling electrical energy for power and light. It has many miles of pole lines within the state of North Dakota. One of these lines was built along and on the right of way of a section line highway in Cass County. The Highway Department decided to streamline this highway. In order to do this the county procured additional easements, sevteen feet or more in width, on each side of the original easement, thus making the whole easement one hundred feet or more in width. The Highway Department then required the plaintiff company to move its power line to the outer edge of the newly acquired right of way. The owners of some of the land adjacent to the highway who had thus granted easements for highway purposes objected so the plaintiff was compelled to bring this action to obtain by condemnation the right to erect and maintain thereon its poles, cross-arms, wires and other necessary accessories. The defendant Von Bank was one of the landowners who thus objected. He owned a half section of land, extending a mile north and south on the west side of the highway. Von Bank, on June 23, 1938, by a written instrument, granted an easement in favor of Cass County for the additional right of way as thus required by the Highway Department. At the time he executed this instrument it was understood and agreed by and between him and the county authorities that he should have the right to use the land over which the easement was granted for agricultural purposes subject, of course, to its use for highway purposes. The tract in question was to be planted to hay, the county furnishing such seed as might be required, but no part of this understanding and agreement was included in the instrument granting the easement. However, on August 31, 1938, the Board of County Commissioners of Cass County unanimously passed and entered in its Minutes a resolution embodying the terms of this understanding (also made with others who had voluntarily granted similar easements) which, among other things, recited:

"Whereas, Cass County, North Dakota, has acquired certain easements for public highways over and across certain lands in Cass County, North Dakota, said easements being so acquired by voluntary grants to said Cass County from the owners of said lands, and

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"Whereas, at the time said easements were so acquired from said land owners and as a part of the consideration thereof it was agreed by and between said Cass County, North Dakota, and said owners that the said owners, their agents, lessees, assignees and successors in interest, would have the right and privilege to sow and cut alfalfa, brome grass and other suitable grass and hay on that portion of said public highway right of way running from the outer edge of the shoulder of said highway to the outside edge of said right of way, and

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"Now therefore, in pursuance of said agreements of Cass County, North Dakota, with said land owners, their lessees, assignees, or successors in interest and in consideration of better and more efficient maintenance and care of said public highways above set forth and described,

"Be it hereby resolved, That all land owners their lessees, assignees and successors in interest who granted said easements for public highway right of way to Cass County, North Dakota, where said highways and rights of way now exist or to be constructed all said easements are or will be 100 feet or more in width, shall have the right and privilege to sow and cut alfalfa, brome grass or other suitable hay or grass on that portion of said highway right of way existing upon the outside edge of the shoulder of said highway to the outside edge of said right of way, and

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"Be it further resolved, that said right and privilege to sow and cut hay and grass as above set forth shall continue and be in full force and effect as long as said public highways exist, and as long as the easements of Cass County, North Dakota, as aforesaid shall remain in full force and effect, regardless of the owners of the fee simple title in and to said lands upon which said easements now exist."

The plaintiff brought this action pursuant to the provisions of Chapter 36 of the Code of Civil Procedure, sections 8202 et seq., Comp.Laws 1913, as amended. It set out in its complaint the fact of its incorporation, its business, its need for the easement which it sought, the ownership by the defendant of the property to be burdened, and in paragraphs three and five alleged:

"In the survey and location of the said electric power transmission line, and the right of way and easements therefor, it was necessary for the plaintiff to survey and locate a portion thereof over, upon and across the following described tract of land, situated in Cass County, North Dakota: (Here follows a description of defendant's land.)

"In the erection, construction, operation, maintenance and repair of the said electric power transmission line, pursuant to and in accordance with said survey and location thereof, it is necessary for the plaintiff, its successors and assigns to acquire the right of way and easement for the purposes of constructing operating, maintaining and repairing an electric power transmission line, including poles, cross arms insulators, wires, guy wires and all other equipment and appurtenances in connection therewith whatsoever, together with the right of ingress and egress at any and all times to carry out the purposes above set forth, over, upon, and across the above described tract of land, said electric power transmission line...