Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1916-06-16
SUPREME COURT

FROM MCINTOSH COUNTY.

FROM MclNTOSHr COON'f' 4
M. T. McGilvra Plaintiff and Respond
ent VS.. Minneapolis, St. Paul and
Sault Ste. Marie Railway Company,
corporation, Defendant and Appel
liant. t,.ar'
Syllabus: 1. Evidence examined
and held to furnish prima facie proof
that prairie fire had been started by
railway engine.
2. Sections $3.50, 5571 and 5572 of
the compiled laws Of 1913 were mere
ly intended to be applicable to proof
before the register of deeds where
non-acknowledged instruments are
sought to be recorded and in other In.
stances and when deeds and leases
are sought to- be proved the general
rules of evidence apply.
3. Proof that a witness knows the
signature of the alleged maker of a
lease and knows that it is his sigma
ture that is on the instrument constl'
tutes prima facie proof OF the execu-
ton of such instrument and if undis-
puted will entile it to be introduced
in evidence.
4. Where the record title to land
is in "B, trustee" one who holds pos
session of such land under a lease
from such trustee is entitled to recov-
err damages for the loss Of his hay
which is grown thereon and for In
juries to his lease-hold which are &C.
casioned by prairie fire even though
there is no proof of the authority OF
such trustees to execute such lease.
5. Where the soil of land which is
held under a lease is injured 10y q
prairie fire the measure OF damages
will be the difference between the
value of the lease-hold interest before
and after the fire. =. =.
6. Where DAMAGES are sought to
be recovered for: injuries to lease
hold interest arising out of an injury
to the soil by prairie fire and the
lease is for five years and contains a
provision that it can be cancelled be-
fore that time in case of a sale OF the
premises, and proof is introduced OF
the injury to the soil, the difference in
the market value of the land before
and after the fire, and that such in
jury to the productivity Of the soil
will last from two to four years, the
Jury may on this evidence make their
estimate of the injury to the lease
hold interest, and this even though
the fact as to whether the owner Will
sell the premises before the expira-
ton Iof the lease and terminate the
same is not proved and is incapable
of proof, and even though no expert
evidence is given of the value of such
limited lease-hold before and after the
fire.
Z. Mere difficulty of proof will not
preveit the recovery of damages. Al
though speculation is discouraged
and where there are two methods of
proof, one which is certain and one
uncertain, that which is certain will
generally be adopted. this rule does
not apply where there is only one
methd of proof which happens to be
uncertain.
8. Where certain land is injured
by a prairie fire and the nature and
extent of the scorching or burning OF
the sd is capable Of direct proof, evil
denceis not admissible as to the in
iurieswhich have been Occasioned by
other fires to other lands at other
times nor is evidence of the general
effect of prairie fires upon the land
which it burns over, the test being
the injury to and the effect on the
particular land in issue.
9. The market value OF an article
is the usual standard for measuring
it's vaue and is the sum fixed by the
consesus of buyers and sellers. This
sum, .lowever, must necessarily fuc-
suateand in order that there may be
a maHet it is neither necessary tina:
ereshall be a, fixed price nor that
the pevailing price should be gener-
ally howpp 4
10. Where hay is destroyed by q
prairj fire the measure of damage is
the larket value of the hay at the
placeat the time and in the condition
that was in when destroyed. If
there's no local market then the mea-
sure the value at the nearest mar
ket lbs the cost of transportation. II
there's no market at all then it is
the CIT of production, but if such cost