Fritz v. Western Light & Power Corp.

• Decision Date: 06 October 1934
• Docket Number: 31641.
• Parties: FRITZ v. WESTERN LIGHT & POWER CORPORATION. [*]
• Court: Kansas Supreme Court

36 P.2d 90

140 Kan. 250

FRITZ v. WESTERN LIGHT & POWER CORPORATION. ^[*]

No. 31641.

Supreme Court of Kansas

October 6, 1934

Syllabus by the Court.

One whose property is injured by another should take appropriate measures readily available to him to mitigate damages as much as is reasonably possible under circumstances.

Where electric company, in constructing transmission line, damaged plaintiff by destroying his pasture fences, it was plaintiff's duty to mitigate his damages by properly repairing fences.

Court's alleged error in excluding evidence could not be reviewed where evidence was not offered on hearing of motion for new trial (Rev. St. 1923, 60--3004).

One entitled to damages because his property is injured by another should take appropriate measures readily available to him to mitigate the damages as much as is reasonably possible under the circumstances.

Appeal from District Court, Barber County; Geo. L. Hay, Judge.

Action by George Fritz against the Western Light & Power Corporation. From the judgment, plaintiff appeals.

Samuel Griffin, of Medicine Lodge, for appellant.

J. N Tincher and Riley MacGregor, both of Medicine Lodge, and C W. Burch, B. I. Litowich, La Rue Royce, L. E. Clevenger, and E. S. Hampton, all of Salina, for appellee.

HARVEY Justice.

This is an action by a lessee of pasture lands against a light and power company which constructed an electric transmission line through the pasture, for damages to his use of the pasture alleged to have resulted from the construction of the line. The jury answered special questions and returned a general verdict for plaintiff for $70. He has appealed, and complains of instructions given, also that other instructions were not given, and of the exclusion of certain evidence.

Plaintiff alleged he had under lease what is known as the Flinton ranch of about 2,700 acres, consisting of some farm land, but mostly of pasture; that he had made a contract with one Bud May to pasture and feed 235 head of cattle during the fall and winter, and was to keep the fences in good repair; that defendant entered upon the land near the north end of the pasture, made surveys, and constructed an electric transmission line, and in doing so tore down fences on the north end of the pasture and at places on the east and west sides, which were not replaced properly, as a result of which some cattle strayed and had to be gathered, and he lost the use of the north end of the pasture for the remainder of the winter, and damaged growing wheat and grass by making roadways and dragging poles.

The evidence disclosed the construction work was done in the latter part of November and took about a week; that in doing so some fences were taken down, which defendant later replaced, but perhaps this was not done as well as it should have been; that a roadway was made across a wheat field by trucks hauling equipment; and that some poles were dragged across the grass.

The court instructed in effect that one who is damaged by the wrong of another should take such action to mitigate his damages as he could do reasonably under the circumstances and, if plaintiff could have had the full use of the pasture for the remainder of the fall and winter by herding for a brief period and repairing fences not properly rebuilt by defendant, his recovery on this point would be limited to the cost in time and labor in repairing the fences and in herding the cattle for the...