Brakken v. Minneapolis & St. L. Ry. Co.

• Decision Date: 17 July 1883
• Court: Minnesota Supreme Court
• Parties: BRAKKEN v MINNEAPOLIS & ST. L. RY. CO.

31 Minn. 45

16 N.W. 459

BRAKKENvMINNEAPOLIS & ST. L. RY. CO.

Supreme Court of Minnesota.

Filed July 17, 1883.

Appeal from an order of the district court, Freeborn county.

J. H. Parker, for respondent.

J. D. Springer and John Whytock, for appellant.

BERRY, J.

Upon mature consideration of all the proceedings in the court below, we see no substantial reason for disturbing the order refusing a new trial in this case. Upon the whole, the result was sustained by the evidence; and though there may have been technical errors in the proceedings, there are none sufficiently important or material to affect the substantial justice of the verdict. The plaintiff in his complaint claimed an easement in a certain street or road, from the enjoyment of which he was cut off by defendant's track excavation. We can conceive of no reason why he might not establish his easement by proof either of a public or private street or road. He seems to have introduced evidence upon the basis that if he failed to prove one he might succeed in proving the other, and that it would be sufficient if he established either. There was evidence from which either might have been found by the jury. Upon this point it must be borne in mind that Mrs. Mary F. Wedge (afterwards Armstrong) and Clarence Wedge were the sole heirs at law of Lucius P. Wedge, and the sole devisees under his will of the real property to which the present controversy relates. To our minds this is a fact of capital importance in this case. It gives great force and significance, by way of estoppel, acquiescence, and ratification, to the acts and conduct of Mrs. and Clarence Wedge, and in support of the plaintiff's claim of easement. It makes much evidence, otherwise, perhaps, of doubtful competency and materiality, clearly applicable to the issues in the case.

In reference to the matter of damages on account of the defendant's obstruction of plaintiff's way, this court, when this case was here before, (11 N. W. REP. 124,) defined the proper measures of damages to be “the difference between the fair rental value of the plaintiff's property with its crossing in its present improper condition, and its rental value with the crossing in a proper condition.” The applicability of this rule of damages is in nowise affected by the fact that the property was not rented, but was occupied by plaintiff himself. As applied to that state of facts the rule is not unfair nor unjust. With reference to the charge, we are of...