Minnesota Valley R. Co. v. Doran

• Decision Date: 01 January 1872
• Citation: 17 Minn. 162
• Parties: MINNESOTA VALLEY R. CO. v. MICHAEL DORAN.
• Court: Minnesota Supreme Court

Page 162

17 Minn. 162

MINNESOTA VALLEY R. CO.

v. MICHAEL DORAN.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Le Sueur county, denying a new trial.

Swan & Bangs, for appellant.

Caldwell & Severance and Brisbin & Palmer, for respondent.

RIPLEY, C. J.

This is the case in which a new trial was heretofore ordered. Minn. Val. R. Co. v. Doran, 15 Minn. 230, (Gil. 179.) The appeal taken by Doran from the award of the commissioners was upon the ground that the award of said commissioners is a wholly inadequate compensation for the taking of said several parcels of land.

The said appeal coming on for trial at the October term, 1870, of the district court of Le Sueur county, and a jury impaneled to try the issue raised on said appeal, having viewed the premises, the railroad company offered to proceed, and introduced evidence in support of the issue made by said appeal on the part of said company, to which Doran objected.

The court decided that Doran should assume the position of plaintiff in the cause, and proceed to introduce his evidence in support of the issue made, to which the company excepted.

The company's charter provides that "the cause upon such appeal shall be entered, proceeded in, and determined in the same manner as cases on appeal from courts of justices of the peace. Laws 1855, c. 24, § 6.

Gen. St. c. 65, § 108, provides, as to the entering of such appeals, that "the appellant shall cause an entry of the appeal to be made by the clerk of the court on or before the second day of the term, unless otherwise ordered by the court, and the plaintiff in the court below shall be the plaintiff in the court above." Strictly speaking there is here no plaintiff in the court below. The statute contemplates a separate cause as arising on the taking of the appeal between the company and each land-owner who may appeal, or vice versa; and, as the commissioners are not a court in the sense of this language, and their mode of procedure is discretionary in the matters here involved, (see 16 Barb. 68, where the language of the court applies very well to the provisions of this charter,) the provision in question can have no other bearing, if any, in a case of this kind than that the appeal, as to the relative position of the parties upon the calendar, shall be entitled as the proceedings theretofore were, viz., the company as petitioner, and the land-owner as respondent. The charter proceeds to say that in case the appeal shall involve the determination of any question of fact, the same shall be tried by a jury. It is, of course to be tried in the same manner as an action originally commenced in the district court.

Gen. St., c. 66, § 209, provides that, unless the court for special reasons otherwise directs, the plaintiff shall open and close.

Under the discretion hereby given the district courts of this state, like those of the territory, have, and rightfully, regulated the conduct of the trial in this respect according to the immemorially-established rule of both common and civil law, viz., that the side which holds the affirmative of the question in issue shall open and close. 2 Bl. Comm. book 3, c. 23, p. 366.

There could not be a fitter case for the exercise of discretion in this direction than on appeals of this kind. The issue before the jury is the amount of compensation to be paid by the company to the land-owner for the taking or injuriously affecting his land, in determining which the jury are to take into consideration the benefits to accrue to him by the construction of the road, and allow the same by way of recoupment against the damages sustained thereby, and return their verdict for the balance of damages.

This settles the question as to the right to open and close in favor of the land-owner. The analogy is perfect between this case and an action for unliquidated damages or breach of contract in which defendant claims a set-off by way of recoupment under Gen. St. c. 66, §§ 79, 80, in which there could be no question that the affirmative of the issue was on the plaintiff.

The case of Connecticut River R. Co. v. Clapp, 1 Cush. 559, is in point. In that case the railroad company appealed from the award. "In cases where a reassessment of damages is to be made by the jury, after an assessment has been made by the commissioners, it is immaterial which party makes the application for the assessment. The party claiming damage, the same being unliquidated, and to be settled by the jury, has the right of opening and closing the cause. 1 Greenl. Ev. §§ 76, 77; Mercer v. Whall, 5 Q. B. 447. In this case the rule is, we think, correctly laid down by Lord Denman, and is decisive as to the present case. `Whenever, [he says,] from the state of the record at nisi prius, there is anything to be proved by the plaintiff, whether as to the facts necessary for his obtaining a verdict, or as to the amount of damages, the plaintiff is entitled to begin.' * * * The only question for the jury in this case was a question of damages, which they were bound to assess without any regard to the previous assessment by the commissioners. There seems, therefore, no reason for allowing the petitioners to open and close."

The force of this authority is not affected by the circumstance, that in Massachusetts the application for assessment of damages, in the first instance, may be made by either party; nor by the fact that the court of Massachusetts does not, like ours, provide in terms that the land shall not be taken without compensation first paid or secured. The decision does not proceed at all upon such considerations. "Whether the land-owner, being desirous to get his damages, is usually the moving party, and whether in all those cases the laws of Massachusetts look on him as a claimant and the acting party," as suggested by the petitioner, would obviously have been held as immaterial by the court, as which party applied for the jury.

It does not appear who initiated the proceedings in the case above cited and it could have made no difference which. Before the jury, the parties stood just like the parties here; for in Massachusetts the jury estimate the damage to the land-owner by taking or injuring his property, and allow, by way of set-off, the benefit if any by reason of the construction of the road.

The company called the respondent as a witness and asked him the following question: "What is the worth of cord-wood and railroad ties sold by you to the railroad company taken from the farm land in question?" Which was objected to by the respondent; the objection was sustained, and appellant excepted. This ruling was, of course, entirely correct.

The company then offered to prove that the respondent had sold large quantities of wood and ties to the railroad company, and had realized large profits therefrom, in consequence of the location of the railroad across the land; to which the respondent objected, and the objection was sustained.

The appellant insists that this was an offer to show such a benefit as the jury were authorized to allow in recoupment of the respondent's damage. How far it is from being such will appear from one or two very obvious reflections. Such benefit must accrue from the construction of that particular portion of the road which runs through plaintiff's land, and it must accrue directly from such construction.

The offer, in brief, is to prove that the respondent got a large price for wood and ties sold the company, because the road was on his land.

Now, leaving out of view the fact that the offer did not, as the excluded question did, specify that the wood was taken from the land, and assuming that it was, which the court below was by no means obliged to assume in ruling upon the offer, it will at once be perceived that such offer is obnoxious to...