Spawn v. South Dakota Cent. Ry. Co.

• Decision Date: 18 June 1910
• Citation: 127 N.W. 648,26 S.D. 1
• Parties: LEWIS SPAWN, Plaintiff, v. SOUTH DAKOTA CENTRAL RAILWAY COMPANY, Defendant.
• Court: South Dakota Supreme Court

26 S.D. 1, 127 N.W. 648 (1910)

LEWIS SPAWN, Plaintiff v SOUTH DAKOTA CENTRAL RAILWAY COMPANY,

Defendant

South Dakota Supreme Court

Appeal from Circuit Court, Lake County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Krause & Krause

Attorneys for plaintiff.

Joe Kirby

Attorney for defendant.

Opinion filed June 18, 1910

McCOY, J.

In this case plaintiff brought suit to recover damages from defendant on account of defendant entering upon his land in section 10, Chester township, Lake county, S. D., and constructing a line of railway across the same. The defendant answered, admitting that it had constructed its line of railway across plaintiff's land, and further answered by two counterclaims. In the first counterclaim defendant alleged that plaintiff, as an inducement to have defendant construct its said line of road on the east side of Brant Lake, consented and agreed to the construction of said railway across his land without compensation, and that defendant, relying upon said consent and agreement, constructed its said railway across plaintiff's land, and that, by reason of such agreement and consent, plaintiff should not be permitted to recover in this action. In the second counterclaim defendant alleged that plaintiff executed and delivered to defendant his certain promissory note for $250 and interest in consideration of and as a bonus to defendant for constructing its line of road through plaintiff's neighborhood on the east side of Brant Lake. Plaintiff replied and denied the allegations of the first counterclaim, and, while admitting the making of said note, alleged that the same was without other consideration than that the defendant would locate a station and depot in Chester township.

On the trial defendant was permitted to introduce in evidence, over proper objections on the part of plaintiff, that at a meeting of farmers of the said neighborhood, prior to beginning to construct said road, plaintiff was present and took part, and orally stated that, if the railway was located on the east side of the lake, he would give the right of way across his land to defendant without compensation, and that plaintiff also gave the bonus note in consideration of the location of said road and depot on the east side of said lake. Plaintiff denied in his testimony that he gave such consent to cross his lands by such railway line, but claims that at the time such meeting was held a survey of said road had not yet been made across his land, and that it was then understood that said road would not cross his land. Plaintiff also testified that the $250 note was executed only on condition that defendant would locate a station on section 14, adjacent to plaintiff's land. Plaintiff also testified that, prior to defendant's entry on his land, he notified defendant not to enter thereon until, the damages were paid under proper condemnation proceedings. The court instructed the jury upon the issues arising on the complaint and defendant's first counterclaim, and also instructed the jury to return a verdict in favor of defendant on the second counterclaim for the amount due on said note as principle and interest. The jury returned the following verdict: "We, the jury in this action, find all the issues therein in favor of the defendant and against the plaintiff, and assess the defendant's damages on the second counterclaim at $335.00, being the sum due on said note." Judgment was thereafter entered on said verdict in favor of defendant. Plaintiff thereafter moved for a new trial upon all the issues, claiming, first, that the court had erred in permitting oral testimony in relation to the alleged agreement claimed to have been made by plaintiff whereby plaintiff had agreed and consented orally to permit defendant to construct its railway across his land without compensation; and, also, that the evidence was insufficient to justify a verdict in favor of defendant on the note of $250. The trial court granted the plaintiff's motion for a new trial upon the issues raised by the complaint and defendant's first counterclaim, and denied plaintiff's motion for new trial on the issues raised under the second counterclaim based on the bonus note. Both parties, plaintiff and defendant, have appealed to this court; the plaintiff, contending that a new trial should also have been granted on the issues raised by defendant's second counterclaim on the ground of insufficiency of the evidence to sustain the verdict of the jury, and the defendant contends that the court erred in granting to plaintiff a new trial on the issues raised by the complaint and defendant's first counterclaim.

We are of the opinion that the learned trial court was right in granting the new trial on the issues raised under the first counterclaim and in denying the motion for new trial on the issues under the second counterclaim. It seems to be generally held that, where there are distinct counts and causes of action and cross-complaints and counterclaims all tried in the same case, a new trial may be granted as to part only, and denied as to others. Such causes of action and counterclaims must be distinct and independent of each other, otherwise a new trial should not be granted as to part only. Under the evidence in this case the second counterclaim, a cross-cause of action on the note exists without reference to and independent of the action for damages for entry on plaintiff's land and constructing thereon said line of railway. 29 Cyc. 733; Jacob v. Carter, 36 Pac. 381; Duff v....