Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-10-09

Lottie e. Keeney and Patrick Dewitt,
respondent VS.. City of Fargo, appel
liant. Appeal from the district court
of Cass county; Charles A. Pollock,
Judge. Seth Newman for appellant. F..
B. Morrill, and s. G. Roberts, for
respondents. Il.
Syllabus: In an action to quiet
title to real estate in which the COM
Iplaint alleges that the plaintiff is the
owner of the land in fee and that the
defendant has NO right, title or inter
est therein, a Judgment that the
plaintiff does own the land and that
the defendant has no right, title or
interest therein, conclusively adjudi-
Gates all questions affecting the title
to such land as bars claim to an
interest in the real estate in the ma
ture of an easement In or license or
consent to use the land existing when
such adjudication was made, in sub
sequent action by the same plaintiff
for damages on account of the unlaw-
full occupation of said real estate by
the defendant.
z. A witness is not competent to
testify in reference to the rental value
OF real estate concerning which rental
value he has no knowledge nor any
knowledge of the rental value of real
estate similarly located. The knowl-
edge of the witness as to the rental
value of lots used for business pur-
poses does not render such witness
competent to testify as to the rental
value Of real estate of different char
acter and location and having no
rental value for business purposes.
Morgan, G. J. This is an action to
recover the possession of certain lots
in the city of Fargo which the city is
alleged to have wrongfully taken
possession OF and excluded the plain
tin therefrom and for the recovery of
damages for the value of the use of
the lots. The property involved in
the action IS known as Keeney & De
Wits Third addition to the city OF
Fargo and comprises IA lots on
Seventh Avenue North. This avenue
IS IS feet wide, according to the
original plat of the city. As travelled
and used at present said avenue Is rs
feet in width and the additional width
Is made by using the lots in question.
| The city answered and alleged that
the plaintiff had acquiesced in the TAX.
| ing OF the lots as street and that the
city has the right to the possession of
the same by prescription and that the
plaintiffs have no title ito these lots
and are estopped from claiming any
title thereto.
The unlawful taking and occupation
OF these lots is alleged to consist Of
their use for street purposes and the
building of sidewalks thereon and
grading the same as a street and mac
ing sewer pipes and culverts thereon.
| The court withdrew all disputed
questions from the consideration o1
the jury except the damages to be
assessed against the city ON accoun,
OF ITS use of the street since Septem
4 Der, 1899. The jury found the plain
nirs' damages to be $714.58. Judg
ment was entered on the verdict ant
me city appeals from the Judgment
The Judgment is reversed, new tria;
granted and the cause remanded 70,
further proceedings according to law
/ Lottie e. Keeney and Patrick Dewitt
respondents, VS.. the City of Fargo, an
i peflanf. Appeal from an order Of thu
district court Of Cass county; Charlie,
A. Pollock, Judge Seth Newman, 10,
appellant q. B. Morrill, and s. g
Roberts, for respondents.
\ Syllabus: |. To warrant a ;cour
IN setting aside a judgment upon 9
showing Of surprise under section
i 1928, Revised Codes, the party mus
move promptly, and within one yea,
after notice. s
4 z. In cases of motions to set aside
judgments not within the provisions
lof section 529s, Revised Codes. tht
party seeking relief must move season
ably.
1 .. In applications for relief unde,
section 1898, Revised Codes, tria
courts are vested with large discretion
and their action will not be disturbed
unless such discretion has beer
i abused.
i Morgan, G. j.: This Is an appea
from an order of the district court q
cass county denying an application t.
set aside a judgment and refusine
1 leave to answer IN the action. tn.
action was commenced by a persona
service OF a summons and complain
ON September 18th, 1899. An amended
4 complaint was served and flied ~
q January 25th 1900. The cause 4
action stated IN the amended com
plant Is that the plaintiffs are n.