Duluth & Winnipeg R. Co. v. West

• Decision Date: 27 October 1892
• Citation: 51 Minn. 163
• Parties: DULUTH & WINNIPEG R. Co. <I>vs.</I> F. D. WEST <I>et al.</I>
• Court: Minnesota Supreme Court

51 Minn. 163

DULUTH & WINNIPEG R. Co.vs.

F. D. WEST et al.

Supreme Court of Minnesota.

Argued October 10, 1892.

Decided October 27, 1892.

Appeal by the Duluth & Winnipeg Railroad Company, from an order of the District Court of St. Louis County, Ensign, J., made January 23, 1892, refusing a new trial.

May 16, 1891, the Duluth & Winnipeg Railroad Co. filed its petition to condemn a right of way one hundred and twenty-five feet wide, across the southwest quarter of the southwest quarter of section thirty-four, (34,) Township 49, Range 15 West, in St. Louis County, owned by George J. McManus. Commissioners were appointed, and filed their report September 16, 1891, awarding McManus $5,000 for the land taken and for damages to the rest of the tract. McManus appealed from this award to the District Court, and the case was tried November 21, 1891. The jury awarded him $6,666.66. From an order denying its motion for a new trial the Railroad Company appealed.

W. A. Barr, and J. B. Douglas, for appellant.

A. E. McManus, and Davis, Kellogg & Severance, for respondent.

GILFILLAN, C. J.

Respondent owned a forty-acre tract of land. The right of way of the St. Paul & Duluth Railroad, running across it east and west, cut it in two in such a way as to make it practically two tracts. It does not appear that after such division the two pieces were ever used, or that they could be used, for a common purpose as one tract, in the sense that a farm, though cut in two by a railroad, may still be used and be practically one farm or tract. The appellant instituted these proceedings to condemn for its right of way a strip containing three or four acres, running across the tract east and west, some distance south of the right of way of the St. Paul & Duluth Railroad Company. On the assessment of damages before a jury on an appeal from the award of commissioners, the respondent, after stating that he did not ask for damages to the part of the forty north of the St. Paul & Duluth Railroad Company right of way, and proving the value of the strip to be taken by appellant, offered to prove the damage by reason of the taking to the remainder of the part of the tract south of the St. Paul & Duluth Railroad right of way. This was objected to on the ground that the entire forty was one tract, and it is urged that the measure of damages in such cases is the value of the land taken, with the damage by reason of the taking to the remainder of the entire tract of which that taken is...