Chicago, M. & St. P.R. Co. v. Brink

• Decision Date: 07 April 1903
• Citation: 94 N.W. 422,16 S.D. 644
• Parties: CHICAGO, M. & ST. P. RY. CO. v. BRINK.
• Court: South Dakota Supreme Court

94 N.W. 422

16 S.D. 644

CHICAGO, M. & ST. P. RY. CO. v. BRINK.

Supreme Court of South Dakota

April 7, 1903

Appeal from Circuit Court, Union County.

Proceedings by the Chicago, Milwaukee & St. Paul Railway Company against Bennett H. Brink for the condemnation of land. From an award in favor of defendant, plaintiff appeals. Affirmed.

R. B Tripp, for appellant. Ericson & Stickney, for respondent.

CORSON J.

This is an appeal by the plaintiff from a judgment in condemnation proceedings awarding to the defendant $400 damages and costs.

The plaintiff, for a number of years, has had and used a right of way over the land of the defendant, 18 feet in width, 9 feet on each side of the center of the track. This right of way across the defendant's land extends easterly and westerly parallel to an old highway, and the plaintiff company deemed it necessary to take two strips about 24 feet in width, one embracing the land between its present right of way and the highway, and the other on the southerly side of its right of way, making its right of way 66 feet in width. The defendant's residence is on the northerly side of the highway, and between his residence and the railroad there are two fences, one constructed by the railway company along its original right of way, and the other by the defendant along the south side of the highway, enclosing a strip about 24 feet in width and about 1,500 feet in length. The amount of land sought to be condemned was a fraction less than two acres, and the price of land in that vicinity was shown to be from $35 to $50 per acre. It is contended on the part of the appellant that the verdict of the jury was excessive, and that it evidently disregarded the instructions of the court in finding a verdict in favor of the defendant for $400, and this presents the only question to be considered on this appeal.

The appellant insists that inasmuch as the plaintiff had a right of way over the defendant's land, of which it had been in possession for many years and over which it had daily run its trains, the defendant could not recover in this proceeding any damages on account of the construction of the railroad itself and the inconvenience it might cause him. This is undoubtedly correct, and such, evidently, was the view of the learned circuit court, for in its charge to the jury, after calling its attention to the facts that the railroad company had previously acquired the right of way across the land to the extent of 18 feet in width, and now sought an additional right of way to the extent of 24 feet on each side of its present right of way, it says: "Evidence has been introduced in regard to the value of these two strips of land, and the question to be submitted to the jury is, what is the fair and just compensation to be awarded Mr. Brink the owner of those two strips of land, for appropriating them to the use of the railroad company in this proceeding? Mr Brink is entitled to a fair and just compensation for the damage resulting to him by reason of the taking of these two different strips of land, and widening of the right of way from 18 to 66 feet. The question is one of the compensation merely. The defendant is not entitled to anything beyond a fair and reasonable compensation for the taking of the land. The amount of land would be something less than two acres. You are to determine what he should have for the taking of that land." Again, the court instructed the jury: "The railroad company now has a right of way 18 feet wide, 9 feet from the center of the track in each direction; so that you are not to allow Mr. Brink for the present disadvantage and present injuries that the railroad company is now inflicting or would in the future inflict on the right of way on Mr. Brink's premises by the reason of its being there. But you only are to allow compensation for the additional amount they take, and the injury that would result to his farm by reason of the taking of additional land. You will not allow anything at all for compensation for the land they have already taken, because they now own that, nor for the inconvenience that the railroad, as it now exists there, under the present circumstances causes Mr. Brink and his farm, but simply for the additional damage that results by reason of taking 24 additional feet on the north side and the same amount on the south side of the track."

It will thus be seen that the jury was limited in its verdict to the damages which the defendant might sustain by reason of the taking of these two additional strips, that is, the value of the land actually taken and the damage caused to the balance of...