The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1909-12-15
TELEPHONE CASE
WAS Reversed
SEVERAL IMPORTANT POINTS
SETTLED BY SUPREME COURT
IN TRI-sTATE CONDEMNATION
CASE AT GRAND FoRks-FARM.
ING HIGHWAY GIVES NO RIGHTS


ING HIGHWAY GIVES NO RIGHTS
In decision handed down yesterday
the state supreme court reversed the
decision OF the district court of Grand
Forks county, Judge Goss. acting judge
in the famous Tri-state Telephone Co.
condemnation suit. The telephone
company brought action to secure a
piece Of highway for telephone pur-
poses. The land in question abutted
property owned by M. A CosgriIl and
others.
The lower court allowed testimony
20 the effect that one Of the property
owners had been using part Of the
highway for agricultural purposes. The
supreme court holds that farming pub
lie highway does not give the farmer
any rights and such testimony should
not have been allowed.
The lower court allowed testimony
to prove that the future value of a
grtve Of trees growing upon adjoining
property would be impaired. This the
supreme court holds to be wrong.
Following is the syllabus of the
case:
In the supreme court, state of North
Dakota, October term, 1909.
Tri-State Telephone and Telegraph
Co, plaintiff and appellant, VS.. M. A.
Sosgrill, ct. at, defendants and respon-
dents.
!. In an action brought in the ex-
exercise of the right Of eminent do
main 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 uses as tele-
phone and telegre 2E line, it is impro-
per to admit evidence 20 the effect
that an owner of land AUDITING upon
the highway has been accustomed, for
period of years, to use for agricultur-
al purposes a portion of the highway
between the travelled strip on the me-
dian 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 land
owner was a tresspasser without any
right than can be recognized in law
or considered of pecuniary value; and
such testimony being entirely irrele-
want and immeterial serves no pur-
pose other than to improperly en-
nance in the minds of the jury the
value Of the strip taken and should
have been excluded.
2. The measure of damage for TAX
ing property in exercise of the right
of eminent domain under the law of
this state, is the value of the land
owners 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 sama tract,
by reason of the appropriation of a
part to the uses of the party condemn
ing. 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 inn
properly received.
g.. A grove of trees growing upon
or adjoining land sought to be con-
demned under the right of eminent
domain is part Of the real estate and
should be valued as such. Any dam
age to the trees growing upon the
strip taken by the appropriation of
the land to the uses of the party con-
demning may be considered diminu-
ton in value OF the interest of the
party owning the land An instruc-
ton that jury in such a case may
consider as a proper element of dam
age such damage to the said groves
and trees as will naturally and prop
erly necessarily result in the course
of time to said grove and trees by
the construction, maintenance and
operation" of telephone and tele-
graph line, is erroneous in that it
directs the attention of the jury to
future contingency and not to the
damage sustained by the property TAX
en- at the time OF trial.
4. The damage sustained by the
owner Of the lands abutting upon a
public highway by the taking of a
strip Immediately adjoining his prop
erty line for the purpose OF construct
ing thereon telephone and telegraph
line, while II may be small in amount,
is not as a matter Of law merely NOM
inal: but is substantial in the sense
that the land owner is entitled to re-
cover sum sufficient to compensate.
him for all damage to the property
actually sustained by him under the
conditions.
Syllabus by the court.
Appeal from district court, Grand
Forks county, Hon. e. b. Goss, Judge.
Action by Tri-State Telephone &
Telegraph Co., VS.. M. A. Cosgriff and
others, for the purpose of condemning
certain rela property to the uses Of
the plaintiff for telephone and tele-
graph line in exercise Of the right of
eminent domain. A judgment was
entered in favor OF each OF the defen-
dants and plaintiff appeals.
Judgment reversed and new trial
ordered.
Bangs, Cooley g. Hamilton and Geo.
A. Bangs, attorneys for appellant
Skulason a Burtnesa, for respondent.
WEEDS QUICKLY AFTER DIVORCE,