Colburn v. Chi., St. P., M. & O. Ry. Co.
| Decision Date | 16 February 1901 |
| Citation | 85 N.W. 354,109 Wis. 377 |
| Court | Wisconsin Supreme Court |
| Parties | COLBURN v. CHICAGO, ST. P., M. & O. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Dunn county; E. W. Helms, Judge.
Action by James C. Colburn against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.E. B. & R. E. Bundy, for appellant.
H. L. Humphrey and Pierce Butler (Thomas Wilson, of counsel), for respondent.
This is an action for damages for the breach of a written contract under seal, executed and acknowledged by the plaintiff and the defendant, and duly witnessed March 14, 1899, wherein and whereby the plaintiff, in consideration of $250, to him in hand paid, granted, licensed, and permitted the defendant, its agents, contractors, and employés, to enter upon the S. W. 1/4 of the N. E. 1/4 of section 31, township 29 N., of range 14 W., in Dunn county, and excavate and remove therefrom all the earth and material from a strip of land 250 feet in width and 1,000 feet in length adjoining the right of way of the defendant on the north, and extending east 1,000 feet from the west line of the 40-acre tract, described; that it was therein mutually understood that the plaintiff only granted to the defendant the right to remove earth from the strip of land described, and that such excavation should not be made below the level of 10 feet below the railway track, and that the surface should be left in a reasonably smooth condition. The complaint, among other things, alleges that the plaintiff had performed each and every condition on his part agreed to be performed by such written contract; that the defendant under and by virtue thereof entered upon the land, and excavated and removed dirt therefrom; that the new line of railway referred to had been completed, and the defendant had ceased to excavate from such land, and had stopped all work thereon, and had removed therefrom; that the defendant had failed and neglected to perform the terms and conditions of the contract on its part to be performed, in this: that it had failed and neglected to leave the surface of the land where it had been so excavated in a reasonably smooth condition, but, on the contrary, left the surface in a very rough, uneven, and unsightly condition, and thereby greatly injured the land, and the farm of the plaintiff adjoining the land, and of which such land was a part; and claimed damages in the sum of $300. The defendant answered, by way of admissions, denials, and counter allegations, to the effect that it had excavated and removed, from the land therein described, certain earth and material for the construction and improvement of its railroad; that the work referred to in the contract had been completed; that it had ceased to excavate from the land, and had stopped all work thereon; that it had left the surface of the land where it so excavated in a reasonably smooth condition. At the close of the testimony, the jury, by direction of the court, returned a verdict in favor of the defendant. From a judgment entered thereon, the plaintiff brings this appeal.
The contract gave the defendant the right to “excavate and remove therefrom all the earth and material from” the strip of land described, being 1,000 feet in length, east and west, and adjoining the defendant's right of way on the north, and being 250 feet in width, and the defendant therein agreed that such excavation should not extend more than 10 feet below the defendant's railway track, and that the surface should “be left in a reasonably smooth condition.” It stands confessed that the surface was not left in a reasonably smooth condition. On the contrary, it is admitted that a heavy and abrupt ridge ran along near the south side of the strip of land described, sloping more or less towards the north, and then rising more or less abruptly, and in some places nearly, if not quite, perpendicular. Thus, it is in evidence that, at a cross section 740 feet from the west end of the strip, the bank rose abruptly from the comparative level to the height of 21 1/2 feet, and then sloped downward towards the north to 10 feet and 4 inches above such level, and then rose almost perpendicular to the height of 41 feet and 10 inches above such level. At another cross section 440 feet from the west end, the bank rose abruptly, and almost perpendicular, from the comparative level to the height of 16 1/2 feet, and then continued to rise quite...
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State v. Buckner, 55979
...by its duty to specify the basis of its ruling when requested by interrogating counsel to do so. Colburn v. Chicago, St. P., M. & O. Ry. Co., 109 Wis. 377, 383, 85 N.W. 354, 356 (1901); see Adelmann v. Elk River Lumber Co., 242 Minn. 388, 65 N.W.2d 661 (1954); State v. Hoffman, 240 Wis. 142......
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Rader v. Gibbons & Reed Co.
...Or. 454, 473, 230 P.2d 195 (1951).1 Larson v. Dougherty, 72 S.D. 43, 29 N.W.2d 383, 384 (1947); Colburn v. Chicago, St. Paul, Minneapolis & Omaha R. Co., 109 Wis. 377, 85 N.W. 354, 355 (1901); McCormick, The Law of Evidence, p. 118 ...
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State v. Hoffman
...this case is the accepted practice in a number of courts, we give this matter extended consideration. In Colburn v. Chicago, St. P., M. & O. R. Co., 1901, 109 Wis. 377, 85 N.W. 354, 355, the plaintiff offered evidence tending to establish his damages. This evidence was objected to by counse......
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Goodwin v. State
...counsel, after these confusing rulings, asked for suggestion from the court, we think he was fairly entitled to it. Colburn v. Railway Co., 109 Wis. 377, 383, 85 N. W. 354. Whether there was error in denying that request by the remark, “We are not running a kindergarten,” perhaps need not b......