Tri-State Telephone & Telegraph Co. v. Cosgriff
| Decision Date | 14 December 1909 |
| Citation | 124 N.W. 75,19 N.D. 771 |
| Court | North Dakota Supreme Court |
Appeal fro District Court, Grand Forks County, Goss, J.
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.
Judgment reversed and a new trial ordered. Judgment in favor of each of the defendants.
Bangs Cooley & Hamilton, for the appellant.
Courts allow only for property actually taken. Everett v. Union P. Ry. Co., 59 Ia. 234, 13 N.W. 109; Burt v Wigglesworth, 117 Mass. 302; Co. v. Ring, 58 Mo. 491; Co. v. Elliott, 5 Nev. 358; Cummings v. Williamsport, 84 Pa. 472; Santa Anna v. Harlin, 99 Cal. 538, 34 P. 224; San Diego Land & Town Co. v. Neale et al., 78 Cal. 63, 20 P. 372; Brown v. Calumet River Co., 125 Ill. 600, 18 N.E. 283; Brunswick v. Union Depot Street Ry., etc., Co., 31 Minn. 297, 17 N.W. 626, 47 Am. Rep. 789; In re B. H. T. & W. Ry. Co., 22 Hun. 176; 5 Ency. of Evidence, 197.
Where property is taken that is subject to a public easement, damages are only nominal. Lewis, Eminent Domain, 500; See also Joyce on Electric Law, (1st Ed.) 321; Stetson v. Bangor, 60 Me. 313; Bartlett v. Bangor, 67 Me. 460; Walker v. Manchester, 58 N.H. 438; Clark v. Elizabeth, 37 N.J.L. 120; Baldwin v. Buffalo, 35 N.Y. 375; Baldwin v. Buffalo, 35 N.Y. 375; Matter of City of Brooklyn, 73 N.Y. 179; Sherer v. City of Jasper, 93 Ala. 530; 9 So. 584; Danforth v. City of Bangor, 83 Me. 423, 27 A. 268; In re Adams, 141 N.Y. 297, 36 N.E. 318; Village of Oleon v. Steyner, 135 N.Y. 341, 32 N.E. 9; In re Department of Pub. Works, 53 Hun. 556; In re Wells St., 4 N.Y.S. 301.
The measure of damages where a telephone company takes a right of way is the value of the land actually taken for placing poles and the extent to which the value of the use of the portion between the poles and under the wires is diminished. St. Louis & C. R. Co. v. Postal Tel. Co. of Ill., 173 Ill. 508, 51 N.E. 382; Co. v. Katkamp, 103 Ill. 420; Co. v. Co., 120 Ala. 21, 24 So. 408; Mobile & Ohio Ry. Co. v. Postal Telegraph Cable Co., 101 Tenn. 62, 46 S.W. 571, 41 L.R.A. 403; Mobile & Ohio Ry. Co. v. Postal Telegraph Cable Co., 76 Miss. 631, 26 So. 370, 45 L.R.A. 223; Co. v. Co. , 104 F. 623; 2 Lewis Eminent Domain, 490; Joyce on damages, 2204; 15 Cyc. 701, 711 and 724; Postal Tel. Cable Co. of Utah v. Oregon S. L. R., 65 P. 735.
Where the property can be used only for a particular purpose, damage to the remainder is measured by the extent to which it is rendered less valuable for the use to which it is devoted. 2 Lewis Eminent Domain, 485, p. 1076; Co. v. Katkamp, 103 Ill. 430; St. L. I. C. R. et al. v. Postal Tel Co., 173 Ill. 508; 51 N.E. 382; Mobile & Ohio Ry. Co. v. Postal Telegraph Cable Co., 76 Miss. 631, 26 So. 370, 45 L.R.A. 223; First Parish v. Co., 7 Gray 106; Co. v. Chicago, 166 U.S. 226; In re 9th Ave. 45 N.Y. 729; In re Albany Str., 11 Wend. 149.
Electric poles for street cars cause no damage. Taggart v. Newport Street Railway Co. (R. I.) 19 A. 326; Rafferty v. Central Traction Co. (Penn.), 23 A. 884; Williams v. Electric Street Ry. Co. (Ark.), 41 F. 556.
Skulason & Burtness, for respondent.
Abutting owner owns to center of highway and may use such strip. Jones on Telegraph and Telephone Companies (1907) Secs. 109, 119, 120, 121; Lewis on Eminent Domain, Sec. 131 and cases cited; 1 Enc. of Law, 236, 242; Postal, etc., Co. v. Eaton (Ill.) 39 L.R.A. 722; Elliott, Roads and Streets, p. 519.
Respondents are entitled to substantial damages, Jones on Telegraph and Telephone Cos., Sec. 109, 119, 120, 121; Lewis on Eminent Domain, Sec. 131 and 478 and cases cited; City of Buffalo v. Pratt, 30 N.E. 233; Kreuger v. Wisconsin Tel. Co., 81 N.W. 1041.
ELLSWORTH, J. Hon. CHAS. F. TEMPLETON, Judge of the First Judicial District, sat in the place of Judge FISK upon the hearing, but did not participate in the decision. CARMODY, J., SPALDING, J., (concurring).
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 rendered 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 damages 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 medium 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: 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 & Street (2nd Ed.) p. 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...
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