Tri-State Tel. & Tel. Co. v. Cosgriff

• Decision Date: 14 December 1909
• Citation: 19 N.D. 771,124 N.W. 75
• Court: North Dakota Supreme Court
• Parties: TRI-STATE TELEPHONE & TELEGRAPH CO. v. COSGRIFF et al.

19 N.D. 771

124 N.W. 75

TRI-STATE TELEPHONE & TELEGRAPH CO.

v.COSGRIFF et al.

Supreme Court of North Dakota.

Dec. 14, 1909.

Syllabus by the Court.

In an action brought in the exercise of the right of eminent domain for the purpose of condemning to the use of a telephone company a strip of land wholly within the limits of a public highway for use as a telephone and telegraph line, it is improper to admit evidence to the effect that an owner of land abutting upon the highway has been accustomed for a period of years to use for agricultural purposes a portion of the highway between the traveled strip on the medium line of the same and his property line. The highway is dedicated to purposes of travel, and, in his use of it for agricultural purposes, the landowner was a trespasser without any right that can be recognized in law or considered of pecuniary value; and such testimony being entirely irrelevant and immaterial serves no purpose other than to improperly enhance in the minds of the jury the value of the strip taken and should have been excluded.

The measure of damage for taking property in exercise of the right of eminent domain under the law of this state is the value of the landowner's interest in the land actually taken and the depreciation in value, if any, sustained at the time of trial by land not taken, upon the same tract, by reason of the appropriation of a part to the uses of the party condemning. Evidence in which the attention of the witness is directed to the future value of the interest condemned, or to the value of the right sought to be acquired by the party condemning, rather than the rights and interest of the owner in the property taken is improperly received.

A grove of trees growing upon, or adjoining, land sought to be condemned under the right of eminent domain is part of the real estate, and should be valued as such. Any damage to the trees growing upon the strip taken by the appropriation of the land to the uses of the party condemning may be considered a diminution in value of the interest of the party owning the land. An instruction that a jury in such a case may consider as a proper element of damage “such damage to the said groves and trees as will naturally and properly necessarily result in the course of time to said grove and trees by the construction, maintenance, and operation” of a telephone and telegraph line is erroneous, in that it directs the attention of the jury to a future contingency, and not to the damage sustained by the property taken at the time of trial.

The damage sustained by the owner of lands abutting upon a public highway by the taking of a strip immediately adjoining his property line for the purpose of constructing thereon a telephone and telegraph line, while it may be small in amount, is not as a matter of law merely nominal; but is substantial in the sense that the landowner is entitled to recover a sum sufficient to compensate him for all damage to the property actually sustained by him under the conditions.

Appeal from District Court, Grand Forks County; E. B. Goss, Judge.

Action by the Tri-State Telephone & Telegraph Company against M. A. Cosgriff and others, for the purpose of condemning certain real property to the uses of the plaintiff for a telephone and telegraph line in exercise of the right of eminent domain. A judgment was entered in favor of each of the defendants, and plaintiff appeals. Judgment reversed, and a new trial ordered.

Bangs, Cooley & Hamilton and George A. Bangs, for appellant. Skulason & Burtness, for respondent.

ELLSWORTH, J.

The proceeding in which this appeal is taken is a civil action brought under the provisions of chapter 36 of the Code of Civil Procedure (sections 7574-7603, Rev. Codes, 1905) for the exercise of the right of eminent domain upon certain real property belonging to the defendants. The use for which the condemnation of the property is sought is a right of way upon which to construct, maintain, and operate a telephone and telegraph line. The real property brought in question by the proceeding is situated in Grand Forks county, and, in the case of each defendant, abuts upon a public highway, 4 rods or 66 feet in width. The right of way sought to be condemned is included within a strip 8 feet in width wholly within the limits of the highway immediately adjoining the property line of the defendants. The line of poles as planned by the plaintiff will be set midway in this 8-foot strip, 4 feet from the property line of the defendants and 132 feet apart, or about 40 to the mile. Prior to the time the action was brought the board of supervisors of the civil township having control of the highway duly granted to plaintiff the right to occupy the highway for the use mentioned. This action is brought for the purpose of condemning the interests of the defendants in the strip of land to be used as a right of way. Each of the defendants has made answer, and alleges that a damage will accrue to him and to his abutting land by the taking and use of an 8-foot strip in the location described for a telephone and telegraph line. The question of the amount of compensation to be paid each of the defendants for his interest in the land condemned to such use was submitted to one jury with a stipulation that a separate verdict might be rendered and a separate judgment entered in each case. In the case of the defendant Cosgriff, the jury found that the value of his right and interest in the land embraced in the highway and taken by plaintiff was the sum of $15; that the damage to his abutting property was the sum of $50, and the detriment or damage to certain trees growing upon a portion of the tract abutting the highway was the sum of $20. Judgment was entered upon this verdict, and the plaintiff appeals therefrom, specifying numerous errors occurring upon the trial in the rulings and instructions of the court. A stipulation of counsel provides that the case on appeal may be abbreviated to include only the evidence offered in reference to the claim for damage of defendant Cosgriff, and that the judgments of all the defendants be bound and affected by the decision of this court in that case. Plaintiff groups his many specifications of error in an assignment of eight classes. Of these, in the view we take of the case, it will be necessary for us to consider only three or four.

The defendant Cosgriff testified as a witness on his own behalf, and stated that the highway abutting his land along which the right of way sought to be condemned extends is put to public use by pedestrians and carriages only for a width of about 10 feet, or 5 feet on each side of the median line, which leaves a strip between the traveled portion and his property line of about 28 feet not traveled upon. He was then asked this question: “Q. Have you in the past been in the habit of using that 27 or 28 foot strip for agricultural purposes?” The question was objected to by plaintiff as immaterial, irrelevant, and incompetent in its bearing upon the issue of the value of the land to defendant. The attorney for defendant thereupon stated: “I propose to show what has been the regular uniform custom in the past as to the use of that strip as having some bearing upon the value at the present time and its probable value in the future.” The objection of plaintiff was thereupon renewed upon the same grounds and was overruled by the court; and the defendant answered the question in the affirmative.

The use of a highway for the planting, growing, and gathering of a crop has rather the character of a permanent appropriation than of the temporary and reasonable use permitted to an abutting landowner. So, whether or not, as contended by plaintiff, defendant has incurred liability under a penal statute by his intrusion upon and interference with the highway, it is readily apparent that he exercised such privileges upon those portions of the highway not used for travel, not as a matter of right, but wholly through indulgence of the road supervisors. Elliott, Roads & Streets (2d Ed.) § 694. The highway is dedicated to purposes of travel, and defendant, in his use of it for agricultural purposes, is, at best, a trespasser without any right that can be recognized in law or considered of any pecuniary value. The testimony admitted by the court's ruling might have served improperly to enhance in the minds of the jury the value of the strip taken. The true question was, What was the value of the interest still retained by defendant in the strip of land taken by plaintiff, giving due weight to the consideration that it was already subject to use as a public highway? As defendant could not rightfully grow crops upon the highway, the consideration by the jury of the fact that he had been permitted to do so for a period of years was entirely immaterial and irrelevant in determining the value of his interest, and could only serve to mislead the jury. The admission of this testimony was error.

The defendant was then asked: “Q. Now, Mr. Cosgriff, understanding that the company...