McDermott v. Sway

• Decision Date: 04 December 1951
• Docket Number: No. 7270,7270
• Citation: 78 N.D. 521,50 N.W.2d 235
• Parties: McDERMOTT v. SWAY et al.
• Court: North Dakota Supreme Court

Page 235

50 N.W.2d 235

78 N.D. 521

McDERMOTT v. SWAY et al.

No. 7270.

Supreme Court of North Dakota.

Dec. 4, 1951.

Syllabus by the Court.

1. 'A motion for a new trial on the ground of the insufficiency of the evidence to support the verdict invokes the discretion of the trial court, but the discretion is a legal discretion to be exercised in the interest of justice, and, where the motion is granted, it must appear that the alleged cause or ground had an actual existence.' Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228.

2. Before the trial court can exercise discretion in the decision on the motion for a new trial on the grounds of the insufficiency of the evidence there must be sufficient grounds in the testimony so that a decision could be made either way.

3. On an appeal from an order granting a new trial and appellate court considers only whether under the evidence the trial court had sufficient grounds to exercise his discretion and if so, whether he abused that discretion.

4. Before a person can be held liable for negligence such negligence must have been a proximate cause of the damages claimed.

5. Ordinarily trespass falls in the class of 'intentional harms.' Where there is no intentional act voluntarily done, there is no trespass.

6. In the instant case the jury found for the defendant. The undisputed evidence fails to show any actionable negligence or any trespass by the defendant, Peter Sway, for which plaintiff could hold him liable for damages caused by the trespass of others upon his property. There being no conflict in the evidence upon these matters the trial court had no discretionary power to grant a new trial.

Cupler, Tenneson, Serkland & Leahy, Fargo, for appellant.

Burnett, Bergesen, Haakenstad & Conmy, Fargo, for respondent.

GRIMSON, Judge.

The plaintiff brings an action for damages on three causes of action. He alleges that he is the owner of the S 1/2 SW 1/4 SW 1/4 SW 1/4 of Sec. 30, (5 acres), Twp. 140, Range 48, Cass County, North Dakota. He alleges for his first case of action the wrongful removal of some boundary markers by the defendants and trespass in that connection, claiming damages in the sum of $40.

For his second cause of action the plaintiff alleges that the 'defendant, Peter Sway, without authority and carelessly, negligently and maliciously signed a right-of-way easement to Northern States Power Company giving them the purported right to construct, operate, and maintain an electric line, including towers, poles, wires, guys, stubs and other fixtures over, across and upon the plaintiff's property as well as the defendant's property and pursuant to such purported authority the Northern States Power Company did construct an electric line on the plaintiff's property; that plaintiff has received no portion of the money paid to Peter Sway for such right-of-way easement and that he has been damaged in that the property has greatly deteriorated in value because of such purported right-of-way easement and the construction of the said electric line to his damage in the sum of $200.

For his third cause of action plaintiff alleges that he at one time orally leased these five acres to the defendant; that at the time they were seeded to alfalfa; that the defendants agreed they would reseed it on turning it back to the plaintiff; that they failed to do so and as a result the greater portion of said property has grown up to weeds to the plaintiff's damage in the sum of $50.

The defendants, for lack of information thereon, deny the ownership in the plaintiff of the property described in the complaint and specifically deny each of the three causes of action.

The case was tried to a jury who found for the defendants on all three causes of action and for the dismissal of the action. Plaintiff then moved for a new trial on the second cause of action only upon the grounds that 'The evidence is insufficient to justify the verdict of the jury and that said verdict is against the law.' The trial court granted that motion on the grounds that: 'It is undisputed that there was a trespass upon his premises and where there is an unauthorized entry upon the premises of another, the law infers some damage. The damages could be either nominal or substantial. That would be a question of fact for the jury; but to say that there was no damage from such unlawful entry I believe is against the theory of the law.'

This appeal is from the order of the court granting the new trial on the second cause of action. In that cause of action no complaint is made against the defendant, Selmer Sway, so in this opinion defendant, Peter Sway, is treated as the sole defendant.

A motion for a new trial on the ground of insufficiency of the evidence is addressed to the sound judicial discretion of the trial court. His duty is to exercise his discretion in the interests of right and justice. Pengilly v. J. I. Case Threshing Machine Co., 11 N.D. 249, 91 N.W. 63. To do that, however, there must be some grounds for the exercise of discretion. If the evidence can sustain a judgment only one way there is no ground for the court to exercise discretion. If, however, there is basis in the evidence for a decision either way then there is ordinarily room for the court to exercise his discretion. Reid v. Ehr, 36 N.D. 552, 558, 162 N.W. 903.

The question before this court on appeal from an order granting a new trial is whether the trial court had the grounds to exercise his discretion, and if so, whether he abused that discretion. If there are no grounds in the evidence to give the court a chance to decide either way he has no grounds upon which to exercise his discretion to grant a new trial. These principles are well analyzed and clearly stated by Judge Birdzell in the case of Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228. See cases there cited and also Reid v. Ehr, 36 N.D. 552, 162 N.W. 903; Martin v. Parkins, 55 N.D. 339, 213 N.W. 574; Crane-Johnson Co. v. Prairie Fibre Co., 62 N.D. 51, 241 N.W. 593; Johnson v. Patterson, 67 N.D. 132, 270 N.W. 97; Schnell v. Northern Pacific Railway Company, 71 N.D. 369, 1 N.W.2d 56; Hochstetler v. Graber, N.D., 48 N.W.2d 15.

The evidence shows that the defendant, Peter Sway, was the owner of the SW 1/4 of Sec. 30, Twp. 140, Range 48 with the exception of a five acre tract in the southwest corner of said Sec. 30 owned by the plaintiff. There had been some futile attempts by the parties to set off said five acres by survey. Highway No. 81 lay along the west side of said Section 30. The Northern States Power Company was building a power line on the east side of said highway and for that purpose was obtaining easements from the land owners affected. On May 28, 1946, for a consideration of $25 the defendant, Peter Sway, signed an easement granting the Northern States Power Company the authority to construct and maintain said power line, including the towers, poles, wires, etc., along the west side of the SW 1/4 of Sec. 30, Twp. 140, Range 48, 53 feet east of the section line. This description included plaintiff's five acres. Thereafter the said Northern States Power Company did construct said power line. In so constructing the power line it crossed the five acres of the plaintiff and two poles were erected on plaintiff's property.

The plaintiff claims that the defendant by 'negligently and maliciously' including his land in said easement caused a trespass on his five acre tract in the construction of said power line and claims defendant is liable for the damages to plaintiff's property caused thereby.

On these matters the defendant, Peter Sway, testified on cross examination under the statute as follows:

'Q. Now Do you recall that in May, 1946, you signed a right-of-way easement to Northern States Power Co? A. I did. on my land, yes.

'Q. Well, you say on your land? As a matter of fact in that right-of-way easement deed, you described the Southwest Quarter of Section 30, Township 140, Range 48, didn't you? A. I described nothing. * * *' On direct examination Peter Sway testified:

'Q. And was there anyone out from the Power Company to see you about crossing your land? A. Yes.

'Q. And did you prepare any paper or anything for that easement for the Power Line yourself? A. No, he brought out the paper and I signed it, he explained the reasons for it.

'Q. I'll hand you Plaintiff's Exhibit D, and would you look that over for a moment or two and then I want to ask you some questions about it. Do you recall reading any document like that? A. No, I didn't. I didn't read anything like that.

'Q. But you did sign something? A. Yes.

'Q. And when did you find out for the first time that you may have signed the document where the Power Company put poles on Mr. McDermott's land? A. It was only a short time before this.

'Q. In this lawsuit? A. Yes. That's the first I knew of it.

'Q. There have never been any discussions about it between you and the Power Company as to any land other than your own? A. No.

* * *'

Incidentally the evidence discloses that the plaintiff did not pay any attention to the alleged trespass until shortly before the trial four years later.

On cross examination Peter Sway testified:

'Q. And you want us to understand that the reason you gave them an easement over McDermott's land is because the Northern States Power man fooled you, or something like that? A. No, no, he didn't fool me. All he asked was to give them the right of way over my land because he said the Bell Telephone already had the right-of-way and have had it for years and he said by doing so why they'd put the telephone lines on the same poles and they'd have fewer poles and they'd be farther off the ground where the machinery wouldn't bother them. So I thought it was a benefit to me to do so, because I'd have fewer posts, telephone posts are closer together you know, and the line was hanging there, you couldn't even get a combine through part of it.

'Q. But that gave you no right to give an...