Butte Electric Railway Co. v. Mathews , 34 Mont. 487 ( 1906 )

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

This action was brought by the plaintiff corporation, which owns and operates a street railway in the city of Butte, to condemn a strip of land across the Eveline quartz lode mining claim for right of way purposes. The strip is 60 feet in width by 301.7 feet in length on one side, and 298.3 on the other. The action was commenced and summons issued on June 6, 1901. Prior to that date and on October 15, 1900, the plaintiff, by consent of the owners of an undivided two-thirds interest in the claim, had entered into possession of the right of way strip, and having constructed its road, was in possession at the time the action was brought. All the parties defendant appeared in the ease, but the appellants only, representing the remaining undivided one-third interest, filed answers, and,- there being no issue of fact presented, the court appointed three commissioners to assess the amount of damages. When their report was filed, the answering defendants appealed from the award. A trial in the district court resulted in the following verdict: “We, the jury in the above-entitled cause, find as follows: That the interest of the answering defendants in the property sought to be appropriated is of the value of $800 dollars; that the damages suffered by the answering defendants in the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, is $400 dollars; that the interest of the answering defendants will be benefited by the construction of the improvements of the plaintiff in the sum of-dollars. The total amount awarded to the answering defendants being $1,200.” Thereupon judgment was entered for the sum so found,'with interest from October 15, 1900, the date at which the plaintiff entered into possession. Plaintiff has appealed from the judgment and an order denying it a new trial.

The contentions made in this court are that the evidence is insufficient to justify the verdict, and that the court erred in excluding certain evidence, and in allowing interest on the amount of the verdict from October 15, 1900.

1. It is said that there is no evidence in the record to sustain a finding that the value of the portion of the claim taken exceeded $1,000, or that the damage to the portion not taken exceeded $480, and hence that the damages recoverable by the defendants should not in any event have been fixed at any greater amount than one-third of the sum of these two amounts, to-wit, $493.33. We shall not enter upon a review or analysis of the evidence. We have examined it, and while it is not entirely satisfactory, we think there is sufficient competent evidence in the record to sustain the finding of the jury, and that we should not disturb it.

2. The contention is made that the court erred in excluding from the evidence a written offer made by plaintiff at the hearing before the commissioners to construct across the right of way taken, at its own expense, a tramway for the use of the defendants in removing and dumping debris from their workings upon the property, so as to minimize the damage resulting from the taking. Assuming, without deciding, that this evidence was competent and relevant, the ruling of the court was without prejudice, for the reason that subsequently during the trial the manager of the plaintiff testified, without objection, to the same offer, in substance, namely, that the company would construct the tramway at its own expense. He further testified that the company would also build cribbing along the right of way, so as to render the injury to the dumping ground as little as possible. This testimony supplied, in substance, the evidence excluded by the ruling of the court, and it was doubtless considered by the jury in fixing the amount of damages. For this reason we think there was no error in the ruling.

3. The court instructed the jury that, for the purpose of assessing the compensation and damages, the right thereto should be deemed to have accrued at the date of the summons, and that the actual value at that date should be the measure of compensation for all the property taken, as well as for that not taken, but injuriously affected by the taking. The jury were also directed to allow interest upon the amounts so found from October 15, 1900, the date the plaintiff took possession. The first sentence of the instruction is taken, in substance, from section 2222 of the Code of Civil Procedure. That section further provides that, in ease an order is made letting the plaintiff into possession, as provided in section 2229, the compensation and damages awarded shall draw lawful interest from the date of the order.

Section 2229 provides: “At any time after the report and assessment of damages of the commissioners has been made and filed in the court and either before or after appeal from such assessment or from any other order or judgment in the proceedings, the court or any judge thereof at chambers, upon application of the plaintiff, shall have power to make an order that upon payment into court for the defendant entitled thereto of the amount of damages assessed, either by the commissioners or by the jury, as the case may be, the plaintiff be authorized, if already in possession of the property of such defendant sought to be appropriated, to continue in such possession; or, if not in possession, that the plaintiff be authorized to take possession of such property and use and possess the same during the pendency and until the final conclusion of the proceedings and litigation. * * # ” Whether such order as is contemplated by this section was made does not appear. The theory of the instruction, however, is that, since the plaintiff took possession on October 15, 1900, the defendants should be allowed interest from that date, under section 2222. The correctness of this theory is not questioned, but the contention is made that the court had no power to direct judgment for any other sum than that mentioned in the verdict and we think this contention must be sustained.

Section 1102 of the Code of Civil Procedure provides: ‘ ‘ When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a counterclaim for the recovery of money is established exceeding the amount of the plaintiff’s claim as established, the jury must also find the amount of the recovery.” This is a clear direction that the jury must find the amount of the verdict, and evidently the jury in this case did, for the concluding language of the verdict is: “The total amount awarded to the answering defendants being ‡1,200 ’ ’; thus indicating that the jury followed the instructions given by the court, and made all allowances to which defendants were entitled. Furthermore, “there is no principle of law more firmly established than that the judgment must follow and conform to the verdict or findings.” (11 Ency. of Pl. & Pr. 905. See, also, Frohner v. Rodgers, 2 Mont. 179; Kimpton v. Jubilee Placer Min. Co., 16 Mont. 379, 41 Pac. 137.)

If the jury had found the amounts to which the defendants are entitled, and had specified that these amounts should draw interest from October 15, 1900, upon the principle that that which can be made certain must be regarded as certain, the court might very well have computed the interest, and included it in the judgment; but such was not the case, and the only thing left for the court to do was to render judgment for the amount found by the jury, leaving it to the defendants, if they were not satisfied, to move for a new trial on the ground that the verdict did not follow the instructions of the court. But since the jury evidently intended that its findings should include all the allowances to which defendants were entitled, we do not think that even this contention would have been meritorious.

The other errors assigned in the record were not argued nor pressed for decision, and we do not think them meritorious. The order denying a new trial is affirmed.

It is ordered that the cause be remanded to the district court, with directions that the judgment be .modified by striking out the interest allowed by the court, and, when so modified, that it be affirmed.

Modified and affirmed.

Mr. Justice Holloway concurs. Mr. Justice Milburn, not having heard the argument, takes no part in the foregoing decision.