Butte Electric Ry. Co. v. Mathews
| Decision Date | 12 November 1906 |
| Citation | 87 P. 460,34 Mont. 487 |
| Parties | BUTTE ELECTRIC RY. CO. v. MATHEWS et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.
Proceedings for the condemnation of property by the Butte Electric Railway Company against H. K. Mathews and others. From a judgment in favor of defendants, plaintiff appeals. Modified and affirmed.
W. M Bickford and Geo. F. Shelton, for appellant.
C. M Parr, for respondents.
This action was brought by the plaintiff corporation, which owns and operates a street railway in the city of Butte, to condemn a strip of land across the Eveline quartz lode mining claim for right of way purposes. The strip is 60 feet in width by 301.7 feet in length on one side, and 298.3 on the other. The action was commenced and summons issued on June 6 1901. Prior to that date and on October 15, 1900, the plaintiff, by consent of the owners of an undivided two-thirds interest in the claim, had entered into possession of the right of way strip, and, having constructed its road, was in possession at the time the action was brought. All the parties defendant appeared in the case, but the appellants only, representing the remaining undivided one-third interest, filed answers, and, there being no issue of fact presented, the court appointed three commissioners to assess the amount of damages. When their report was filed, the answering defendants appealed from the award. A trial in the district court resulted in the following verdict: "We, the jury in the above-entitled cause, find as follows: That the interest of the answering defendants in the property sought to be appropriated is of the value of $800.00 dollars; that the damages suffered by the answering defendants in the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, is $400.00 dollars; that the interest of the answering defendants will be benefited by the construction of the improvements of the plaintiff in the sum _____ dollars; the total amount awarded to the answering defendants being $1,200.00." Thereupon judgment was entered for the sum so found, with interest from October 15, 1900, the date at which the plaintiff entered into possession. Plaintiff has appealed from the judgment and an order denying it a new trial.
The contentions made in this court are that the evidence is insufficient to justify the verdict, and that the court erred in excluding certain evidence, and in allowing interest on the amount of the verdict from October 15, 1900.
1. It is said that there is no evidence in the record to sustain a finding that the value of the portion of the claim taken exceeded $1,000, or that the damage to the portion not taken exceeded $480, and hence that the damages recoverable by the defendants should not in any event have been fixed at any greater amount than one-third of the sum of these two amounts, to wit, $493.33. We shall not enter upon a review or analysis of the evidence. We have examined it, and while it is not entirely satisfactory, we think there is sufficient competent evidence in the record to sustain the finding of the jury, and that we should not disturb it.
2. The contention is made that the court erred in excluding from the evidence a written offer made by plaintiff at the hearing before the commissioners to construct across the right of way taken, at its own expense, a tramway for the use of the defendants in removing and dumping débris from their workings upon the property, so as to minimize the damage resulting from the taking. Assuming, without deciding, that this evidence was competent and relevant, the ruling of the court was without prejudice, for the reason that subsequently during the trial the manager of the plaintiff testified without objection, to the same offer, in substance, namely, that the company would construct the tramway at its own expense. He further testified that the company would also build cribbing along the right of way, so as to render the injury to the dumping ground as little as possible....
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