Great Northern Ry. Co. v. Fiske

• Decision Date: 22 November 1917
• Docket Number: 3829.
• Citation: 169 P. 44,54 Mont. 231
• Parties: GREAT NORTHERN RY. CO. v. FISKE.
• Court: Montana Supreme Court

169 P. 44

54 Mont. 231

GREAT NORTHERN RY. CO. v. FISKE.

No. 3829.

Supreme Court of Montana

November 22, 1917

Appeal from District Court, Fergus County; Roy E. Ayers, Judge.

Condemnation proceedings by the Great Northern Railway Company against George P. Fiske. From judgment on the award as made by the commissioners, plaintiff appeals. Judgment affirmed.

Veazey & Veazey, of Great Falls, for appellant.

E. K Cheadle, of Lewistown, for respondent.

SANNER J.

By appropriate proceedings begun in the district sourt of Fergus county, the plaintiff sought to condemn for railroad purposes a strip of ground containing 13.86 acres across the northwest quarter of section 36, township 16 N., range 17 E. M. P. M. belonging to the defendant. In due course the usual order was made declaring that the purposes to be served by the taking constitute a public use, and appointing commissioners "to ascertain and determine, according to law, the compensation to be paid *** by reason of the appropriation." The commissioners, proceeding as required by Code, § 7341, met, viewed the premises, heard the testimony offered, and made return into court of their findings as follows: I. That the actual value of the property sought to be taken is $1,386. II. That the damages by reason of such taking which will accrue to the portions of defendant's land not sought to be taken, is $833.35. III. That the portion of defendant's property not sought to be condemned will not be benefited by such taking. IV. That the cost of good and sufficient fences and cattle guards is $200 "that the plaintiff shall pay to said defendant *** as compensation and net damages" for such taking, "the sum of $2,219.35, and shall also pay to him the cost of fences and cattle guards, or give bond as required by law." Thereafter, and within the proper time, the plaintiff filed its notice, claiming under section 7344, Revised Codes, to appeal "from all those several parts of the award, report, and assessments of the commissioners," to wit, parts I and III above mentioned; whereupon the defendant moved to dismiss the appeal as not taken in accordance with the provisions of said section, in that it is not taken from the whole, but only from certain parts, of the award, and "for that reason this court is without jurisdiction to hear and determine said appeal." This motion was sustained by the district court; judgment was entered upon the award as made by the commissioners, and from that judgment this appeal is taken.

The sole question presented is whether the plaintiff's attempt to appeal under section 7344 was sufficient, or, to paraphrase the language of plaintiff's counsel. Is either party, in taking such an appeal, required to appeal from the entire award, or may either party appeal from only those portions of it with which he is dissatisfied? We question whether, under section 7344, the plaintiff was entitled to appeal at all. A broad construction of the first sentence of that section and some of the provisions of section 7349, would indicate that it was; but the remainder of these sections as clearly implies that the right of appeal is confined strictly to the owner. It is the settled rule that in proceedings such as this the right to appeal is purely statutory and may be granted to, or withheld from, either party or both, at the discretion of the Legislature, if no constitutional provision is thereby infringed. This question, however, we do not decide, preferring to assume, for the purposes of the present case, that such right does exist in the condemnor.

The plaintiff grounds its contention upon the proposition that section 7344 authorizes an appeal from "any assessment," and argues that, since under section 7341 the commissioners are required to "ascertain and assess" the various elements of damage (but not the total), each finding made in accordance with that section constitutes "an assessment" from which appeal will lie. We think this is untenable. The very section (7344) on which the right of appeal depends,...