The American Coal Briquetting Co. v. Minneapolis, St. Paul, & S.E. Marie Railway Co.
| Decision Date | 30 November 1918 |
| Citation | 170 N.W. 568,41 N.D. 381 |
| Court | North Dakota Supreme Court |
Petition for Rehearing denied January 8, 1919.
Appeal from the District Court of Ward County, North Dakota Leighton, J.
Defendant appeals.
Reversed.
Verdict set aside and new trial ordered.
John E Greene and John L. Erdall (Alfred H. Bright, of counsel), for appellant.
E. R. Sinkler and M. O. Eide, for respondent.
OPINION
The complaint avers that in April, 1915, the plaintiff owned certain buildings and property on section 12-160-80, of the value of $ 7,000. That in operating its line of road which runs northwest from Minot, defendant by its locomotive engine started a prairie fire on going up the hill from Kenmare, and that the fire extended to and burned up the property. The answer is a general denial.
As appears from the map, section 12 is 4 miles east and 2 miles north from Kenmare, and it is 5 or 6 miles from any point on the railroad. The jury found a verdict for $ 1,700. The appeal presents two questions: (1) Does the testimony fairly show that the locomotive set the fire? (2) Was the property of any special value?
Though it is very doubtful, it may be conceded that in regard to the setting of the fire there was evidence sufficient for the jury, and though there is some reckless testimony, there is really no evidence that the property had any real value at the time of the fire. It had been so long abandoned the presumption is that it was of no value. The property consisted mainly of temporary frame buildings which had been constructed in 1902, and they had been used about four or five years in the operation of a coal mine, and for ten years the mine and the buildings had lain vacant and abandoned; and of course during such time the property had rapidly depreciated in value and had come to wreck and ruin. The grass and weeds had grown up from year to year so as to almost cover the buildings. The property had been completely abandoned and left without the least care or protection. It was not even thought of sufficient value to make it worth while to protect it by plowing a fire break around it. There is some testimony in regard to the cost price of the property and considerable reckless testimony, but no evidence in regard to the value of the property at the time of the burning. There is nothing to show the possibility of making an honest dollar from the renting of the property, the use of it, or the wrecking of it, or the sale of it. When the mine played out and ceased to pay operating expenses, the mining property lost its value and it was abandoned and allowed to go to wreck and ruin.
The value of the property depends, not on its cost, but on its utility or productiveness. The walls of Londonderry, the pyramids of Egypt, the walls of China, have ceased to be of any value. The same is true of thousands of buildings and mining properties that were once valuable. Doubtless, ten years prior to the fire, the property in question would have been of some value to tear down and sell as wreckage. There was no evidence that it had any such value at the time of the burning, and the burden of proof was on the plaintiff.
On Petition for Rehearing.
Plaintiff has petitioned for a rehearing. Much of the petition is devoted to criticism of certain expressions contained in the majority opinion. Leaving philological questions on one side, the basic reasoning announced in all of the former opinions is the same, viz., that there was no legally sufficient evidence as to the value, to sustain the verdict for the amount returned by the jury in this case. And we are still of the opinion that this holding was correct.
Plaintiff called only one witness, one Wright, to testify to the value of the buildings. On direct examination he testified, in response to leading questions, as to the value of the property. On his cross-examination it was developed that his former testimony was in fact not as to value, but as to the original cost of construction. No reasonable man can read Wright's testimony and arrive at any other conclusion.
Plaintiff contends that inasmuch as there was no objection to Wright's testimony when it was offered, it became competent evidence and must be so considered. The rule sought to be invoked is well...
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