Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-12-15
In theSuprerne Court.
Tri-State Telephone and Telegraph
Co., Plaintiff and Appellant, VS..
M. A. Cosgriff, ct al, Defendants

Co., Plaintiff and Appellant, VS..
M. A. Cosgriff, ct AL, Defendants
and Respondents.
/. In an action brought in the ex-
ercise 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 tele-
phone and telegraph line, it is i'm
proper to admit evidence to the ef-
feet that an owner of land abutting
upon the highway has been accus-
toned for period Of years to use
for agricultural purposes portion of
the highway between the travelled
strip on the median line of the same
and his property line. The highway
is dedicated to purposes Of travel and
in his use Of it for agricultural pur-
poses the land owner was trespas-
ser without any right that can be
recognized in law or considered of
pecuniary value; and such testimony
being entirely irrelevant and imma-
teria1 serves no purpose other than
to improperly enhance in the minds
of the jury the value of the strip TAX
en- 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 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 re-
ceived.
3. 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 dimin-
ution in value of the interest of the
party owning the land. An instruc-
ton that jury in such 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 a telephone and tele-
graph line, is erroneous in that 1t d.
reefs the attention Of the jury to
future contingency and not to the
damage sustained by the property
taken at the time of trial.
4. The damage sustained by the
owner Of the lands abutting upon
public highway by the taking: Of a
strip Immediately adjoining his prop
erty line for the purpose of construc'
ting thereon a telephone and tele-
graph line, while it may be small in
amount, is not as matter of law
merely nominal; but is substantial in
the sense that the land owner Is en-
titled to recover q sum sufficient to
compensate him for all damages to
the property actually sustained by
him under the conditions. -.'.
{SylIabus by the court = ....,t
1 Appeal from district court, Grand
Forks county, Hon. e. b. Coos
Judge. E =: I<s: E%Ss y...ss< .4L..v
Action by Tri-state Telephone and