Lake Superior & Mississippi R. Co. v. Greve

• Decision Date: 01 January 1872
• Citation: 17 Minn. 299
• Parties: LAKE SUPERIOR & MISSISSIPPI R. CO. v. MARY GREVE.
• Court: Minnesota Supreme Court

Page 299

17 Minn. 299

LAKE SUPERIOR & MISSISSIPPI R. CO.

v. MARY GREVE.

Supreme Court of Minnesota.

Appeal by the company from an order of the court of common pleas, Ramsey county, denying a new trial.

James Smith, Jr., for appellant.

Brisbin & Palmer, for respondent.

RIPLEY, C. J.

Upon proceedings taken by the company to condemn three irregularly-shaped pieces of land, described by metes and bounds, and referred to and designated in its petition as tracts A, D, and I, upon an annexed plan, the commissioners awarded as damages for the first tract $400, for the second $200, for the third $500.

The respondent appealed, and, upon a trial of the appeal, the jury returned a verdict awarding her the gross sum of $10,000.

The company appeals to this court from the order of the court below denying its motion for a new trial, made upon the following grounds: (1) Excessive damages, appearing to have been given under the influence of passion and prejudice; (2) that the verdict is not justified by the evidence, and is contrary to law; (3) error in law occurring at the trial, and excepted to.

The first ground is not urged. It is urged, however, that the erroneous rulings of the court, and refusals to charge as requested by the appellant, have induced a verdict excessive in amount.

It appears that the respondent was originally the owner of an irregularly-shaped tract of land. The railroad was located through it, and by a former condemnation had taken a strip 35 feet wide on each side of the center line of such location, and thereby leaving the residue in three irregularly-shaped parcels, viz., two small tracts designated in this case as tract D and tract I, aforesaid, on the west side, and the rest, constituting the third, on the east side of said 70-foot strip. From this third tract the present condemnation takes tract A.

Under the first condemnation the commissioners awarded $500 for said 70-foot strip, which was not appealed from, and had become final.

"It is palpable (says the appellant) that the commissioners under the first condemnation must have taken into consideration the fact, as an element of compensation, that these tracts were so left irregular, and their value reduced; yet the court, in its charge, ignored the former proceeding, and instructed the jury that `it is obviously fair that the company should pay for any and all damages done to the property, as well as for the value of that which is taken; and if the shape of the portion which remains be irregular and inconvenient, causing damage, it would be proper for you to consider that fact in favor of the land-owner.' This portion of the charge was duly excepted to, and we submit that the court erred, and, by its charge, has made the company pay twice for the same thing."

No objection can be made to the sentence quoted in the abstract. Unless the appellant can show error in the application of the principle therein stated on the part of the court or jury, the appellant's position is unfounded. This it has not done.

The whole of the paragraph quoted from is as follows: "In such cases as this a party is entitled to a fair market value for property taken by a railroad company. As to the irregularity of the shape of the property left, I do not think that has much to do with the case, and, for this reason, if a piece of property is cut off by a railroad for its own use, and without reference to the consent or convenience of the owner, it is obviously fair that the company should pay for any and all damage done to the property, as well as for the value of that which is taken; and if the shape of the portion which remains be irregular and inconvenient, causing damage, it would be proper for you to consider that fact in favor of the land-owner."

This plainly has no application to tract D or tract I, for the appellant took them all. But tract A was carved out of the large tract on the east side of the railroad aforesaid, so as to leave that which was not taken in an irregular shape.

It seems impossible but that the court must herein have referred to tract A, and that from which it was taken, and that the jury must have so understood it. It appears by the case, however, that the exception in question also covered what followed, namely: "If there be 15 acres in a piece of property, and the railroad company takes an acre, they take it just as they please, without reference to its shape; and it would be unfair to take a portion of land worth $1,000 per acre, and then say that the portion so taken was not worth at that rate, because (by your action) the shape was irregular."

This refers to the value of the tract taken, and is correct in the abstract. It is applicable to tract A, which is taken in an irregular shape. It has no application whatever to D and I, the whole of which were taken, and which were irregular when taken, — an irregularity resulting, too, from the former condemnation; whereas it would be unreasonable to say that the words "by your action" referred to any action of the company other than the proceedings then under consideration.

"So, (the charge proceeds, and which is also covered by the exception,) in valuing these portions, you must consider them, not as irregular pieces, but as a part of the whole, of which the value was so much per acre; they have taken it as they pleased; if the whole was worth $1,000 per acre, the part taken is worth at the same rate per acre. If the railroad company take land of but little comparative value, the principle would be just the same; as to irregularity of shape, the shape would not deliver it [sic] from its value under such circumstances."

This again is correct in the abstract, and correct as applied to the portion A, and the portion of respondent's land from which portion A was taken. It has no applicability to D and I, and it is not presumable, therefore, that the court or jury so applied it. If it be said that the language was open to that construction, because the words "in valuing these portions you must consider them, not as irregular pieces, but as part of the whole," etc., will include all three tracts, the answer is that their natural application is to portion A, and that from which it is taken. It would scarcely occur to any one to speak of D and I as part of a whole, etc. But if the generality of the language was likely, in appellant's opinion, to mislead the jury, it should have asked for a more specific instruction in that regard.

The exception, as taken, is to what could raise at most but a surmise that the jury might have been mislead by the generality of the language specified, — a surmise, however, which is without weight, in view of the fact that D and I are separately described in the petition, and separately appraised by the commissioners, and all the witnesses at the trial. It is inconceivable, therefore, that the jury should have supposed that the court, in speaking of a whole from which the company had taken a part, referred to the property as it was before the first condemnation, and considered D and I as still part and parcel thereof.

The appellant requested the court to instruct the jury as follows: "That the railroad company, in condemning property for railroad purposes, acquires an easement and right to use the property for the purposes for which it is condemned; that in assessing the compensation and damages to be paid to the appellant, (the land-owner,) the same will be assessable upon the theory that the user will be perpetual, and the same compensation allowed as though the fee was absolutely taken; nevertheless, the appellant, as land-owner, has the right to the use of the condemned property, provided such use does not interfere with or obstruct the use of the property for railroad purposes; hence, if the flowage of the water along the side of the railroad embankment is in fact no damage or injury to the property, and does not in anywise affect the use of the condemned land for railroad purposes, such user is allowable."

The user referred to is the supposed flowage necessary in any improvement of a water-power on respondent's land.

Taking the appellant's construction of the language of the court below to be correct, the court gave this instruction, qualified as follows: "That the right of defendant [the railroad company] to the use of land taken by this proceeding for railroad purposes, is absolute and exclusive; that it may cover such land with buildings, or put it to such other use as may be necessary to carry on its proper and legitimate business; and may exclude the occupancy and use of every one else. * * * In theory the law is that if the land taken by the railroad company was condemned and taken from the general property, he, the owner, would be entitled to the use of the land; but in practice that does not amount to anything. In theory he has a right, but in practice he is at the mercy of the railroad company."

"In all this [says the appellant] we submit that the court has...