Montana-Dakota Utilities Co. v. Culver, MONTANA-DAKOTA

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: MORRIS; GRIMSON
• Citation: 80 N.W.2d 541
• Docket Number: MONTANA-DAKOTA,No. 7648
• Decision Date: 18 January 1957
• Parties: UTILITIES COMPANY, a corporation, Plaintiff and Appellant, v. Edward D. CULVER, a widower; Henry Sabo; and Stanolind Oil and Gas Company, a corporation, Defendants and Respondents.

Page 541

80 N.W.2d 541 MONTANA-DAKOTA UTILITIES COMPANY, a corporation, Plaintiff
and Appellant,
v.
Edward D. CULVER, a widower; Henry Sabo; and Stanolind Oil
and Gas Company, a corporation, Defendants and
Respondents. No. 7648. Supreme Court of North Dakota. Jan. 18, 1957.

Page 542

Syllabus by the Court

1. A party who assails the rulings of the trial court in the admission or exclusion of evidence upon a motion for new trial must specify the particular ruling or rulings which he claims to be erroneous and cannot by specifications of a general nature place upon the trial court the burden of exploring the record in an attempt to ascertain the ruling or fulings that may fall within the terms of the general specifications.

2. Where a party moves for a new trial on the ground of insufficiency of the evidence to sustain the verdict, he must point out wherein the evidence is insufficient.

3. A party may move for a new trial on the ground of excessive damages appearing to have been given under the influence of passion or prejudice but the appellate court will not reverse an order of the trial court granting or denying a motion on this ground unless a manifest abuse of the discretion of the trial court is shown.

4. 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 were actuated by passion or prejudice.

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

6. An order made by the district court or by a judge thereof without notice is not appealable.

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

Mackoff, Kellogg, Muggli & Kirby, Dickinson, for defendants and respondents, Edward D. Culver and Henry Sabo.

MORRIS, Judge.

This is an action in eminent domain brought pursuant to Chapter 32-15, NDRC 1943 whereby the plaintiff, a public service corporation, seeks to acquire an easement across the Northwest Quarter of Section 24, Township 140, Range 95 in Stark County, North Dakota, for the purpose of constructing an electric power line. It is one of a group of six appeals in cases brought by the plaintiff in Stark County for the acquisition of easements over various tracts of land. They were all tried together and this opinion will dispose of most of the questions involved in the other cases in this group. Seven similar actions were tried in the District Court of Dunn County of which Montana-Dakota Utilities Company v. Amann, N.D., 81 N.W.2d 628, is the leading case.

The proposed line will run from Beulah, North Dakota, diagonally across country a distance of 55 miles to Dickinson, North Dakota. The plaintiff seeks an easement over a strip of land 50 feet wide, 2977.9 feet long, containing 3.42 acres. It runs diagonally across the quarter section from northeast to southwest between the east and west boundaries. The defendant Edward D. Culver is the owner of the tract over which the easement will cross. Henry Sabo is his tenant and the Stanolind Oil and Gas Company is the lessee of an oil and gas lease. The latter defendant answered consenting to the entry of a judgment in eminent domain without allocation of damages

'except that plaintiff shall indemnify and hold this answering defendant

Page 543

harmless from any and all losses, damages, injuries, claims and causes of action arising out of, incident to or in connection with plaintiff's operations on the land covered by this action so long as the right-of-way, easement and rights acquired by virtue of this action shall remain in effect.'

The answer of the defendant Culver, in addition to a general denial, alleges that the value of the real estate involved is $50 per acre; that the construction of the power line will cause great inconvenience in the operation of his farm which is laid out and is being farmed under a contour strip method and that the power line will create additional hazards with the result that the defendants Culver and Sabo will suffer damages to the premises taken to the extent of $1,000; for loss of crops, $300; for the use of the property during construction of the line, $200; for damages to the remainder of the unit and for serverance damages, $1,000.

The trial court determined that the construction of a power line was necessary and his finding to that effect is not challenged on this appeal. The question of damages was tried to a jury who returned a verdict in favor of the defendant Culver and against the plaintiff for damages for taking the 50-foot easement or right of way in the sum of $256.50 and assessed damages to the remainder of Culver's property not taken in the sum of $775. Judgment was entered April 28, 1956, on the findings of the court and the verdict of the jury.

Prior to the entry of judgment a motion for a new trial on behalf of the plaintiff was made and denied. The plaintiff appealed from those parts of the judgment awarding damages for the taking of the easement and awarding damages for injury to the property not taken. It also appealed from the order of the trial court denying plaintiff's motion for a new trial.

The specifications of error on appeal are identical with those that were before the trial court on the motion for a new trial, with the exception of one specification that pertains to an ex parte order entered after the judgment. The scope of our review is limited to the consideration of matters presented by proper specifications. This brings us to the threshold question of the sufficienty of the specifications of error.

Section 28-1809, NDRC 1943 requires that a party desiring to make a motion for a new trial must serve with the notice of motion a concise statement of the errors at law of which he complains and if he claims the evidence is insufficient to support the verdict or is of such character that the verdict should be set aside as a matter of discretion, he shall so specify. It further states:

'A specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient and it shall be proper to include in such specification, specifications of facts conclusively established, together with the facts claimed not to be established, in such manner as to show intelligently wherein, on the whole case, the verdict or decision is not supported by the evidence.'

The plaintiff and appellant specifies that the court erred in matters of law in admitting incompetent and immaterial evidence offered on behalf of the defendants which was prejudicial to the plaintiff. But it has failed to set forth a concise statement of the errors at law of which it complains. The specifications contain only general statements with respect to the admission of evidence. No specific rulings of the court are challenged. For example, it is stated that the court

'Permitted the Defendant, Edward D. Culver, over the objection of the Plaintiff that said testimony was incompetent and irrelevant, to testify to speculative, conjectural and future

Page 544

damages to the strip of land over which the Plaintiff seeks to erect its power line and upon which it is asking an easement, which testimony, by reason of its speculative and conjectural nature, was wholly incompetent and immaterial.'

It has long been the holding of this court that under the statute above referred to

'A party who assails the rulings of a trial court in the admission or exclusion of...