Slattery v. Rhud

• Citation: 136 N.W. 237,23 N.D. 274
• Decision Date: 02 May 1912
• Docket Number: 81912
• Parties: SLATTERY v. RHUD
• Court: North Dakota Supreme Court

136 N.W. 237

23 N.D. 274

SLATTERY v. RHUD

No. 81912

Supreme Court of North Dakota

May 2, 1912

Appeal by plaintiff from an order of the District Court for Burleigh County, W. H. Winchester, J., denying his motion for new trial in an action brought to recover damages for injury to ice.

Reversed.

Newton Dullam, & Young, for appellant.

Defendant had no right to excavate any part of plaintiff's ice-house lot, or to drive his teams on or over any part of it. 28 Am. & Eng. Enc. Law, 2d ed. p. 587; Sedgwich, Damages 6th ed. p. 660; Davison v. Shanahan, 93 Mich. 486 53 N.W. 624; Reynolds v. Braithwaite, 131 Pa. 416 18 A. 1110; Georgetown B. & L. R. Co. v. Eagles, 9 Colo. 544, 13 P. 696; Georgetown, B. & L. R. Co. v. Doyle, 9 Colo. 549, 13 P. 699; Ketcham v. Newman, 141 N.Y. 205, 24 L.R.A. 104, 36 N.E. 197.

F. H. Register, R. N. Stevens, and Niles & Koffel, for respondent.

Trespass cannot be joined with case, for they are actions of different natures, and the judgments are different. Courtney v. Collet, 1 Ld. Raym. 273; Chitty, Am. ed. 291-294; Cooper v. Bissell, 16 Johns. 146; Sheppard v. Furniss, 19 Ala. 760; Brown v. Dixon, 1 T. R. 277; Govett v. Radnidge, 3 East, 63, 6 Revised Rep. 539; 21 Enc. Pl. & Pr. 800; Cleveland v. Barrows, 59 Barb. 364; 21 Enc. Pl. & Pr. 783, 784, 785, & note.

The remedy is by an action of trespass on the case. 21 Enc. Pl. & Pr. 786; Bay Shore R. Co. v. Harris, 67 Ala. 6, 2 Am. Neg. Cas. 1; Wilson v. Smith, 10 Wend. 324; Chitty, 16th Am. ed. 181.

Instructions to the jury upon the subject of trespass quare clausum not being within the issues, the plaintiff is in no position to complain, as he was not and could not have been prejudiced thereby. Sackett, Instructions §§ 73, 313; Reuss v. Monroe, 115 Ill.App. 10; Elkins v. Metcalf, 116 Ill.App. 29; Doherty v. Arkansas & O. R. Co. 5 Ind. Terr. 537, 82 S.W. 899; Beyer v. Hermann, 173 Mo. 295, 73 S.W. 164; McKinstry v. St. Louis Transit Co. 108 Mo.App. 12, 82 S.W. 1108; Chicago Union Traction Co. v. O'Brien, 117 Ill.App. 183; Tedens v. Sanitary Dist. 149 Ill. 87, 36 N.E. 1033; Chicago & A. R. Co. v. Walters, 217 Ill. 87, 75 N.E. 441; Anderson v. Walter, 34 Mich. 113; State v. Donovan, 10 Nev. 36; Quinn v. Baldwin Star Coal Co. 19 Colo.App. 497, 76 P. 552; Conant v. Jones, 120 Ga. 568, 48 S.E. 234.

OPINION

FISK, J.

Actions to recover damages claimed to have been sustained by plaintiff because of injury to certain ice stored in an ice house on lot 22, block 53, original plat of the city of Bismarck, in the month of June, 1908, by reason of certain excavations made by defendant near such ice house, causing a portion of the wall thereof to give way, thus exposing such ice to the action of the air and sun, which, it is claimed, caused a large amount thereof to become honeycombed and rendered valueless. Defendant had judgment in the court below pursuant to a verdict of the jury, and this appeal is from an order denying plaintiff's motion for a new trial.

The facts necessary to a correct understanding of the questions involved are the following: The north wall of the ice house in question was situated about 2 feet from the north line of said lot 22. Adjoining such lot on the north is lot 23. Defendant, who is a general contractor, had a contract to excavate on lots 23 and 24 preparatory to the erection of an armory building. Plaintiff was aware of the contemplated work of excavating on lots 23 and 24, and was present at or about the time such work was commenced.

Paragraph 3 of the complaint is as follows: "That on or about the 22d day of June, 1908, the defendant, Hans C. Rhud, by himself, his agents, and servants, made a large excavation on said lot 23, which excavation extended from the front or west end of said lot 23, in an easterly direction of about 110 feet, and was about 6 feet deep, and more than 25 feet in width; that in making such excavation, the defendant, his agents, and servants encroached upon and did enter upon and dig, take out, and carry away a portion of said lot 22 along or near the north side of said lot, and along and near the north side of the ice house situated thereon, all against the will and without the knowledge or consent of this plaintiff; that the said defendant, Hans C. Rhud, his agents, and servants did said excavating carelessly, negligently, and without using ordinary care and skill, and without taking any precautions to sustain the lot hereinbefore described, to wit, lot 22, block 52, original plat of the city of Bismarck, and without giving the plaintiff any notice of his intention to make such excavations. That by reason of the excavations made by the said defendant, Hans C. Rhud, his agents, and servants, as hereinbefore stated, the aforesaid ice house in the possession of plaintiff on said lot containing plaintiff's 200 tons of ice did sag, sink, and break and become wrecked so that the sawdust and other packing used in and about the packing of said ice in said ice house slipped out and fell away from said ice and left said ice uncovered and unprotected and exposed to the sun and wind, and one hundred and fifty (150) tons of plaintiff's ice so stored in said ice house, hereinbefore mentioned, was thus destroyed and rendered unfit for sale or use, to the plaintiff's damage in the sum of $ 900."

At the trial evidence was introduced by the plaintiff tending to support such allegations, and the defendant introduced evidence tending to show that no excavating was done on plaintiff's lot 22. In charging the jury the trial court, among other things, instructed as follows: "Under the law of this state the defendant would not have the right in making this excavation to excavate any part of lot 22, and if you find that the defendant did excavate any part of lot 22, and if you further find that it was done in a careless and negligent manner and with a want of ordinary care and skill, and that such lack of ordinary care and skill led to any damage to the ice in question, then the defendant would be liable for such damage; bearing in mind all the way through, gentlemen, that the question of negligence, or lack of ordinary care and skill, is one of the main questions for you to determine in this case."

Also as follows: "It would not be enough for you to determine as a matter of fact from the evidence if you should find it to be the fact, that the defendant did excavate any part of the lot 22 in making the alleged excavation, unless you find that it was done in such a manner as led to the damages which it is claimed the plaintiff sustained. To put it another way in order that I may not be misunderstood. If you find as a fact from the evidence that the defendant, Mr. Rhud, in making this excavation, did carelessly and negligently excavate a portion of lot 22, then if you further find that in so doing that his acts lack ordinary care and diligence, and if you find that on account of such acts...