Fairmont & Veblen Ry. Co. v. Bethke
| Decision Date | 29 August 1916 |
| Docket Number | 3768 |
| Citation | 159 N.W. 56,37 S.D. 446 |
| Parties | FAIRMONT & VEBLEN RAILWAY COMPANY, Plaintiff and Appellant, v. BETHKE, Defendant and Respondent. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Roberts County, SD
J. O. Andrews, Howard Babcock, W. S. Lander, John. L. Koeppler
Attorneys for Appellant.
J. J. Batterton, Cliff & Purcell
Attorneys for Respondent.
Opinion filed August 29, 1916
Proceedings were instituted by plaintiff, a railway corporation, to condemn certain real property of defendant for a gravel pit for railway purposes. The tract sought to be condemned embraced 31.2 acres. The jury by their verdict assessed the defendant's compensation and damages at the sum of $7,000. Upon the coming in of the verdict, plaintiff gave immediate notice of its election, and did elect to abandon the condemnation proceedings, and that it did, elect, not to take possession of or appropriate the property, or to pay the damages so assessed or any part thereof, and that it objected to the entry of any judgment except a judgment against it for any costs and damages which may have accrued to defendant. Motion upon affidavits to dismiss the proceeding was overruled, and judgment entered on findings and the verdict. Proper exceptions were taken. The appeal is from the judgment.
Respondent raises a question preliminary to a consideration of the merits of the appeal, viz., that the order denying appellant's motion to dismiss the condemnation proceedings is an appealable order; that the appeal herein is from the judgment alone, and not from the order, and, being independently appealable, the order sought to be reviewed is not an "intermediate order," wain the meaning of the statute providing that "any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment, appearing upon the record transmitted or returned from the circuit court," may be reviewed on appeal from the judgment. Code Civ. Proc. § 463. We are clearly of opinion that such an order is reviewable upon an appeal from the judgment alone, when it is preserved in and appears upon the appeal record. Demming v. Weston, 15 Wis. 236; Neeley v. Roberts, 17 S.D. 161, 95 N.W. 921. 4 Corpus Juris, 680 (§ 2582).
At the trial, the following stipulation was made and filed in open court by the parties.
The agreement, whether oral or written, that, pending condemnation proceeding, plaintiff might enter upon and remove gravel from two acres of defendant's land embraced within the tract proposed to be condemned, upon payment of $300, and that said sum might be deducted from any compensation which might be ascertained for the appropriation of the entire tract, did not constitute a purchase and sale of two acres of said land, nor of the entire tract, as the transaction is disclosed by the record before us. The two acres referred to in the stipulation were described for the purposes of the action, so that they could be identified as land already appropriated--the two acres of land from which gravel had been or was being taken.
The original agreement amounted to at least a license to enter upon and remove gravel from a tract of land not exceeding two acres in extent. If plaintiff in removing gravel extended its gravel pit to cover a small fraction of an acre more than contemplated by such agreement, it became a trespasser; but such act of trespass certainly would not amount to a taking possession of the entire tract proposed to be condemned. The record also discloses that, prior to or pending the condemnation proceedings, plaintiff made surveys of the land proposed to be taken, and dug test holes at some half dozen places to ascertain the extent and quality of the gravel. But such acts certainly did not amount to taking possession of the tract. The acts disclosed amounted only to such investigation as ordinarily would be necessary to ascertain and determine to what extent the land was adapted to the uses for which plaintiff sought to appropriate it. It is conceded that plaintiff removed gravel only from one place, and even if the area of such tract exceeded, by a small fraction, an area of two acres, it would be absurd to hold that it amounted to taking possession of the whole thirty-one acres. There is not a scrap of evidence in the record tending to show that plaintiff by such acts intended to, or ever did, take possession or assume control of the whole tract, or that defendant ever consented or understood that plaintiff be given possession of the whole tract, until after compensation therefor had been ascertained and paid certainly the stipulation at the trial, referring to the two acres already appropriated, negatived any claim by either party that plaintiff had already taken possession of, or "appropriated," the entire thirty-one acres. It is true the trial court entered a finding that, pending the condemnation proceedings and before the verdict, plaintiff had "taken possession of the land, and had removed and was then removing large quantities of gravel therefrom"; but such finding was based upon the affidavits used upon the plaintiff's motion to dismiss the proceedings and the stipulation of parties above quoted, and such written evidence is subject to review by this court, unhampered by the rule that a trial judge, who has observed the demeanor of the witnesses, is in a better position to intelligently weigh the evidence than an appellate court in this case the trial court cannot be presumed to have read the affidavits and stipulation from any better position than that occupied by the judges of this court.
The principle involved is that announced in Lavin v. Kreger, 20 S.D. 80, 104 N.W. 909, and other cases decided by this court. We are of opinion the finding of the trial court referred to is against the clear preponderance of the evidence, except perhaps as to that portion of the land, about two acres in extent, from which gravel was removed under a special agreement between the parties. We have read the record with care, but it would serve no useful purpose to state the matters contained therein. They relate mostly to the oral negotiations to purchase two acres of the tract, and the transaction in which plaintiff paid the defendant $300, and under which plaintiff thereafter removed, used, and appropriated quantities of gravel from the two-acre tract. It is sufficient to observe that the record wholly fails to show that plaintiff was ever in possession of the entire tract sought to be appropriated. We think it clear that plaintiff had not taken possession, and was not in possession, of any portion of the tract sought to be condemned except the two acres contemplated by the stipulation quoted. It is unnecessary, therefore, in this case, to consider the legal effect of taking possession, pending condemnation proceedings, upon the right to dismiss and abandon such a proceeding...
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