Montana-Dakota Utilities Co. v. Amann

• Decision Date: 28 January 1957
• Docket Number: No. 7636,MONTANA-DAKOTA,7636
• Citation: 81 N.W.2d 628
• Parties: UTILITIES CO., a corporation, Plaintiff and Appellant, v. Phillip AMANN and Julia Amann, his wife; Cities Service Oil Company, a corporation; Skelly Oil Company, a corporation, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 628

81 N.W.2d 628

MONTANA-DAKOTA UTILITIES CO., a corporation, Plaintiff and Appellant, v. Phillip AMANN and Julia Amann, his wife; Cities Service Oil Company, a corporation; Skelly Oil Company, a corporation, Defendants and Respondents.

No. 7636.

Supreme Court of North Dakota.

Jan. 28, 1957.

Rehearing Denied March 15, 1957.

Syllabus by the Court.

1. Where the notice of appeal is limited to a part of a judgment and a part of an order, the part of the judgment and the order not appealed from is not before the supreme court for review.

2. An ex parte order issued by the trial court is not an appealable order. Section 28-2702, subd. 7, NDRC 1943.

3. An appeal to the supreme court must be taken by serving a notice in writing signed by the appellant or his attorney on the adverse party and filing the same in the office of the clerk of the court in which the judgment or order appealed from is entered, stating the appeal from the same, and whether the appeal is from the whole or a part thereof, and if from a part only, specifying the part appealed from. Section 28-2705, NDRC 1943.

4. Apart from a statute expressly authorizing an appeal from a part of a judgment, the rule has become well recognized that there may be an appeal from a part thereof only if that part is severable from the remainder.

5. The test as to whether a part of a judgment and order appealed from is so interwoven with other provisions as to preclude an independent examination of the part challenged is whether the matters or issues embraced therein are the same as, or inter-dependent upon, matters or issues which have not been attacked.

6. Under the statute, a motion for a new trial presents no question as to whether the evidence is sufficient or insufficient to sustain the verdict unless the moving party presents with, and as a part of, his motion for a new trial, the specifications of the insufficiency of the evidence prescribed by the statute, and where the specifications of error fail to point out particularly how the evidence is insufficient to sustain the verdict, this court will not review the insufficiency of the evidence.

7. A party who assails the rulings of a trial court in the admission or exclusion of evidence either by motion for a new trial or on appeal must specify the particular ruling or rulings which are claimed to be erroneous.

8. Where on a motion for a new trial or on appeal instructions given by the trial court are not challenged by specifications of error they become the law of the case and in determining whether damages awarded are so excessive as to appear to have been under the influence of passion or prejudice, the law as given in the instructions will be applied.

9. A motion for a new trial on the ground of excessive damages appearing to have been given under the influence of passion or prejudice is addressed to the sound judicial discretion of the trial court and the appellate court will not interfere with the trial court's determination unless a manifest abuse of discretion is shown.

10. To warrant the granting of a new trial on the ground of excessive damages appearing to have been given under the influence of passion or prejudice the amount of the verdict must appear to be so large as to induce the belief that the jury was actuated by passion and prejudice.

Reichert & Reichert, Dickinson, Cox, Pearce & Engebretson, Bismarck, and Raymond Hildebrand, Glendive, Mont., for plaintiff and appellant.

Floyd B. Sperry, Golden Valley, for defendants and respondents Phillip Amann and Julia Amann.

JOHNSON, Judge.

This is one of seven cases in eminent domain, consolidated for the purpose of trial, and tried before a jury in Dunn County, North Dakota. Under instructions of the court separate verdicts were rendered by the jury and separate findings and judgments were entered in all seven cases.

In this action the plaintiff sought an casement for the purpose of construction and maintenance of electrical transmission lines over a 50-foot strip of land running in a diagonal direction from the southwest to the northeast and crossing the East Half of the Southwest Quarter (E 1/2 SW 1/4) Lot 3, (NW 1/4 SW 1/4) and Lot 4 (SW 1/4 SW 1/4) of Section 19, Township 141 North of Range 92, Dunn County, North Dakota. The total acreage involved in the strip for the location of the line is 3.24 acres. The electrical transmission line over this tract consists of 4 H-Frame structures located on the premises. The minimum clearance from the ground of the line between the structures is 26 feet at 120 degrees fahrenheit.

The defendants, in their answer, allege damages claimed by them for the easement sought by the plaintiff, for loss of crops and grass caused by the use of the property pending construction, damages to the remainder of the tract not involved in the 50-foot easement over the land heretofore described, and damages to the remainder of the farming unit of the defendants, consisting of 480 acres. Two oil companies, the Cities Service and Skelly, were ordered interpleaded as defendants. They both answered in this action waiving all damages.

Necessity for the taking was involved in all of the seven actions tried. However, it is conceded that it was established and that it is not an issue before us on this appeal.

The jury rendered a verdict assessing the defendants' damages for the 50-foot easement or right of way in the sum of $712 and $1,440 to the remainder of their property not so taken. In other words, the jury assessed these elements of damage separately. The verdict insofar as pertinent stated:

'We, the jury, * * * find for the defendants * * * and against the plaintiff on the issue of damages * * * and assess their damages for the taking of the 50-foot easement or right-of-way at the sum of 712.00 Dollars, and assess their damages to the remainder of their property not so taken at the sum of 1440.00 Dollars.'

Subsequent to the trial but before entry of judgment the plaintiff noticed a motion for an order setting aside the verdict and for a new trial. The motion was based upon four grounds:

1. Excessive damages.

2. Insufficiency of the evidence to justify the verdict.

3. The verdict is against the law.

4. Errors in law at the trial.

Attached to the notice of motion and the motion the plaintiff served specifications of error and insufficiency of the evidence. Judgment was entered April 28, 1956.

Upon presentation of the motion the plaintiff argued orally only the issue of excessive damages. On May 12, 1956, the trial court entered its order reducing the verdict as to the value of the 50-foot easement or right of way from $712 to $194.40, or the sum of $517.60.

Two witnesses testified as to values, Norbert Amann, a son of the defendant Phillip Amann, and W. D. Knudson, an experienced real estate man, from Dickinson. The testimony of both these witnesses shows that they made two valuations of the easement. One valuation of the 50-foot easement was based on its consideration as a part of the whole tract out of which it was to be taken. The other was based upon the 50-foot strip as a separate unit. The valuation of the strip as a separate unit greatly exceeded its value as a part of the tract. The witnesses had placed the value per acre of the land on which the easement was located at $60 per acre. Norbert Amann testified that the easement was worth $800 as a separate unit, and Knudson testified that it was worth $712.80. Both said it was worth nothing after the taking. The trial court, upon the motion for a new trial determined that the only credible evidence before the jury of the value of the 50-foot easement or right of way was the consideration of it as a part of the whole tract and reduced the value placed upon it by the jury to the value of $60 per acre for the acreage taken, or $194.40.

Both Norbert Amann and Knudson testified that the taking of the 50-foot easement or right of way resulted in damage to the entire farming unit of the defendants, of $5 per acre to the quarter section over which the easement passed, and $2 per acre to the remainder of the farming unit, or 480 acres. The jury found that the damage to the remainder of the entire farming unit of the defendants, apart from the value placed on the 50-foot easement or right of way, to be $1,440.

The trial court in its memorandum decision upon the motion for a new trial dealt only with the question of excessive damages, reducing the damages allowed as the value of the 50-foot easement or right of way, leaving intact the damages allowed by the jury to the remainder of the property not so taken.

Other specifications set forth in connection with the motion were not mentioned by the trial court. Ten days after the order denying a new trial was entered, the plaintiff made an application for a further hearing on the motion for a new trial. It was made on the ground that the trial court had considered only the question of the excessive damages, and that since there were other specifications of error and insufficiency of the evidence pointed out in connection with the motion, and in addition thereto, and since the appellant did not abandon the specifications of error and the insufficiency of the evidence, it therefore, applied to the court for a date at which the plaintiff 'may appear and orally or in writing, support the other grounds' of the motion for a new trial on the specifications of error thereto attached. This application was not noticed for hearing and no hearing was ever had thereon. The trial court denied this application primarily on two grounds. First, it held that the plaintiff through its counsel had expressly waived the grounds not presented upon the argument on the motion. The court asked:

'What about the other points you had in your motion, are you presenting those? A. No, not now.'

The trial court felt that this amounted to an express waiver of the remaining grounds upon which the motion was based, and that, therefore, the...