Mont. E. Ry. Co. v. Lebeck

• Decision Date: 29 November 1915
• Citation: 32 N.D. 162,155 N.W. 648
• Parties: MONTANA EASTERN RY. CO. v. LEBECK et al.
• Court: North Dakota Supreme Court

32 N.D. 162

155 N.W. 648

MONTANA EASTERN RY. CO.

v.LEBECK et al.

Supreme Court of North Dakota.

Nov. 29, 1915.

Syllabus by the Court.

When the plaintiff in a condemnation suit first offers evidence as to values on the assumption that the land involved is adapted for subdivision into town lots, he cannot predicate error upon the subsequent admission of evidence on the part of defendant based on the same assumption.

Certain instructions examined, and held nonprejudicial.

In a condemnation action, compensation is not to be estimated simply with reference to the value of the land to the owner for the purpose it is then used, but with reference to what its present value is in view of the uses to which it is reasonably capable of being put.

When a certain theory as to the method of proving damages is accepted and acted upon by the parties in the trial court as a proper one, it must be adhered to on appeal.

Where an objection to a question propounded to a witness is sustained, and the competency of the question is not apparent on its face, the party must offer to prove the facts sought to be elicited before he can assign error upon the ruling on the objection. Halley v. Folsom, 1 N. D. 325, 48 N. W. 219, followed.

A verdict based on conflicting evidence cannot be set aside as unsupported by the evidence.

Appeal from District Court, Williams County; Fisk, Judge.

Action by the Montana Eastern Railway Company against Fred C. Lebeck and others. From judgment for defendants, plaintiff appeals. Affirmed.W. B. Overson, of Williston, and Murphy & Toner, of Grand Forks, for appellant. R. J. Cowles, of Fairview, Mont., and Palmer, Craven & Burns, of Williston, for respondents.

CHRISTIANSON, J.

Plaintiff appeals from a judgment and an order denying its motion for a new trial in a condemnation proceeding wherein the defendants, Fred C. Lebeck, Lora E. Lebeck, A. M. Gardner, and Florence S. Gardner, were awarded a verdict for $2,363. The tract of land involved adjoins the town site of Fairview, which is located partly in the state of Montana and partly in McKenzie county, N. D. Prior to the taking of the strip involved in this action the plaintiff railway company had acquired a right of way for its railway across respondents' lands, and also acquired certain other lands for side tracks and roundhouse site, etc., and the main track of the road had been graded and substantially completed.At a point a short distance to the east of the east boundary line of the tract of land involved, and extending north and south, there was a lateral irrigation ditch, which extended across appellant's right of way, as well as across the proposed side tracks and roundhouse site. About June 28th, 1913, plaintiff entered upon the lands of the defendants some distance to the east of the southwest corner thereof, and built a ditch extending northerly to the north line of its right of way, and from thence easterly and parallel with said right of way, to a point on said lateral ditch near the eastern boundary line of the tract of land involved in this controversy. This new ditch was constructed by taking earth along the line of such ditch, building a foundation therefrom, and forming an elevated ditch from three to five feet above the natural surface of the ground, with borrow pits extending along the line of the ditch. For right of way for this “diverted ditch” the plaintiff took, and by these condemnation proceedings sought to acquire, 7.42 acres of respondents' land. The strip of land sought to be condemned forms a part of a 160-acre tract of irrigated land, located in the Yellowstone Valley.

[1] As already stated, the tract of land involved in this action adjoins the platted portion of the town site of Fairview, and the particular strip sought to be acquired by the condemnation proceedings occupies that portion of said tract immediately adjacent to the town site. The record shows that some of defendant's witnesses testified that the strip of land sought to be condemned, and other portions of the remaining tract immediately adjacent thereto, was suitable for subdivision into town lots or suburban tracts for residence purposes. Appellant's counsel contends that this element of value was speculative; that this testimony was therefore improper, and should have been excluded. The so-called town lot theory was first injected into this lawsuit, not by defendants, but by the plaintiff. In plaintiff's case in chief it offered testimony tending to show the value of the strip taken and the damage to the remainder of the tract from which the strip was taken. Among the witnesses produced by plaintiff to prove these facts was one Richardson, who testified that, in his opinion, the value of the strip of land taken by the railroad company and sought to be acquired by the condemnation proceedings was $50 per acre. On cross-examination he testified that the strip taken adjoined the town site of Fairview, and that in fixing such valuation he also took into consideration the fact that the railroad company at that time had already built across the land, and that the railroad company had contemplated and planned to build a roundhouse upon the quarter section of land involved in this action. Thereupon, on redirect examination, the following questions were asked by plaintiff's counsel:

“Q. Assuming that the particular property concerned is fitted for use as town lots, do you consider it would be damaged? A. No, sir; it would not. Q. There is an old ditch all the way for half a mile along the south end of this farm? A. Yes, sir. Q. That is there yet? A. Yes, sir. Q. And, if this land is fitted for subdivision to lots, that ditch will be there? A. Yes, sir. Q. If the land is subdivided into lots, Lebeck won't have any use for irrigating, will he? A. No, sir.”

This is the first testimony offered on this subject. No attempt was made by plaintiff's counsel to have this testimony stricken out. Afterwards, upon the presentation of defendants' case, testimony was also offered upon the question of value. It will be seen that plaintiff's counsel, in examination of the witness Richardson, asked his opinion as to value and resultant damages upon the assumption that the particular property involved was fit for subdivision as town property. It seems self-evident that, as plaintiff offered expert evidence upon this assumed state of facts, it was equally competent for the defendants to do so. It would, indeed, be a strange rule of evidence which would permit one party to a controversy to introduce testimony tending to establish a certain fact, and exclude evidence offered by the other party upon the same question.

[2][3] While this element of damage was injected into the lawsuit by the plaintiff, still the trial court in its instructions limited the jury's consideration thereof in such manner as to eliminate the danger of the jury indulging in any speculation as to what effect future contingencies might have upon the damages sustained by defendants. In its instructions the court said:

“You are further instructed that, while it is proper for witnesses, in making their estimate of damages to be allowed the defendants, to take into consideration any use to which you believe from the evidence the property in question may be profitably appropriated, yet you are not bound to base your verdict upon the supposition that it would be appropriated to a use other than that to which it is now devoted. In other words, if, from the evidence it appears that said property in question on June 28, 1913, might profitably have been appropriated or adapted to other uses than agricultural or farming, then the witnesses might take that fact into consideration in making their estimate of the damages sustained; but you, as jurors, are not bound to base your verdict upon that supposition that it would be appropriated to a use other than that to which it was then devoted. I instruct you, gentlemen of the jury, that you cannot allow defendants any damages on the theory that the town of Fairview may spread out to Lebeck's land and the land thereby become valuable for use as town lots because such damages are too remote and speculative.”

Appellant also predicates error upon the first instruction quoted. It is contended that this instruction is contrary to the latter instruction, and hence erroneous. We are unable to see how, under the evidence in this case, appellant could be prejudiced by this instruction.

The undisputed evidence in the case showed that the tract in question adjoined the platted portion of the town site of Fairview, then a town with a population of a few hundred people; that the plaintiff railway company had completed its plans to make Fairview a division point on this new line, and had prior to the taking of the strip involved herein purchased about 30 acres of the same quarter section as a site for its roundhouse, side tracks, and other accommodations required at such division point. The testimony also showed that the strip involved and the remainder of the tract from which the strip was taken was nice level land, fitted for subdivision into small suburban tracts or lots for homes.

The defendants in this case were entitled to receive for the taking of the strip of land for the use intended by the plaintiff a sufficient sum to compensate them: (1) For the actual value of the 7.42-acre strip taken; (2) for the damages (the difference between the cash market value before and after the taking of the strip and the construction of the ditch thereon), if any, which would accrue to the portion of the larger tract not sought to be condemned by reason of its severance from the strip taken and the construction of the ditch thereon. Section 8223, Compiled Laws 1913. It is true compensation should be awarded in view of conditions existing and apparent at the time of the assessment of damages (section 8224, Compiled Laws), and remote, speculative, uncertain, and imaginary damages should not...