Leber v. Minneapolis & Northwestern Ry. Co.
| Decision Date | 03 July 1882 |
| Citation | 29 Minn. 256 |
| Parties | JULIUS LEBER <I>vs.</I> MINNEAPOLIS & NORTHWESTERN RAILWAY COMPANY. |
| Court | Minnesota Supreme Court |
Plaintiff was the owner of certain land in Hennepin county which was under cultivation, and at the time of the trespass complained of, as appears from the uncontradicted testimony of plaintiff, the land was covered with a large number of cultivated grapevines, with fruit trees, crops and vegetables. Between July 1 and October 1, 1880, a force of men, engaged in constructing the railroad of defendant, entered upon this land, destroying the vines, trees and crops, and making an excavation. Proceedings to condemn this land having been instituted by defendant, an award was filed on October 1, 1880, and subsequently, after an appeal from the award, and a trial in the district court for Hennepin county, a verdict for $3,500, and the proper judgment thereon, the plaintiff accepted from the defendant the sum of $3,612.26, in full satisfaction of the judgment and interest thereon.
This action was brought in the same court to recover damages for the before-mentioned trespass. At the trial before Lochren, J., the defendant offered in evidence the judgment-roll (consisting of the appeal bond, notices of trial, jury list, verdict and judgment) in the proceedings on appeal from the commissioners' award. When making the offer, the defendant's counsel stated that the judgment was the only portion of the evidence offered that was material. The court, on plaintiff's objection, excluded the evidence offered as immaterial, on the ground that the judgment was admitted in the pleadings; to which ruling the defendant excepted.
The defendant also offered to prove, by the official reporter of the court, the testimony of the plaintiff and the charge of the court upon the trial of the appeal in the condemnation proceedings, the offer being made "for the purpose of showing that this claim for damages was then offered to the court, and received without objection, and submitted to the jury." The evidence was excluded, and the defendant excepted. Other exceptions are stated in the opinion.
The plaintiff had a verdict for $1,000, and the defendant appeals from an order refusing a new trial.
R. B. Galusha and Benton & Roberts, for appellant.
Wilson & Lawrence, for respondent.
1. The plaintiff complains that between July 1 and October 1, 1880, defendant, "with its agents, contractors, and large force of men," entered upon his land and committed trespasses by digging, etc. Defendant answers that the acts complained of were done by subcontractors of a railroad company with which defendant had contracted for the construction of a railroad from Minneapolis to Osseo, which defendant was engaged in constructing, and that, in order to construct the same, it was necessary to enter upon plaintiff's land and dig, etc. This is in effect an admission that the work constituting the acts complained of was done under a contract entered into by defendant, or, in other words, that the defendant had contracted for its performance, and thereby directed it to be done. In such circumstance defendant's liability is the ordinary liability of one who commands or directs the commission of a trespass. The rule by which an employer is relieved from responsibility for the negligence of a subcontractor working by the job, has no application here.
2. This action is brought to recover damages for the trespasses mentioned, and, as a defence, the answer sets up certain condemnation proceedings, in which, and on October 1, 1880, an award was made by commissioners for defendant's appropriation for its right of way of the strip of plaintiff's land upon which the trespasses were committed. Defendant also alleges an acceptance by the plaintiff of the amount awarded by a jury upon appeal from the commissioners. It appeared in the case that the plaintiff, although he saw the trespassers at work upon his premises, remained silent. He testifies that he did so from fear of violence, though this does not seem to be important, except, perhaps, to rebut any claim that his silence was intended as a sanction. It is contended on defendant's behalf that plaintiff's silence and failure to institute restraining proceedings were a waiver of his right to prepayment of compensation for the appropriation of his property — a consent that the work might go on, or a license to that effect.
There is no rule of law that requires a property owner, in order to save his rights, to enter into an argument with a wilful trespasser, or to forbid him to commit the...
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