Kelly v. Southwestern Light & Power Co. , 166 Okla. 243 ( 1933 )

E.J. Kelly, as plaintiff, filed suit against the Southwestern Light Power Company, defendant, seeking to recover damage from defendant for the alleged construction of defendant's light and power lines on the real property of plaintiff. The record discloses that plaintiff owned considerable property in Waurika, Okla. That defendant had the light and power franchise for said city, and in order to serve said city, constructed light and power lines in and around the city of Waurika.

Plaintiff contends that a portion of defendant's light and power lines are constructed over his real property, and that as a result of the construction of said light and power lines over his property he has been damaged thereby. Defendant contends that said lines are constructed in the streets and highways and not upon the property of plaintiff. The case was tried to a jury and resulted in a judgment for defendant.

In our consideration of the plaintiff's appeal we think the first point to be considered is the question of whether or not defendant's lines were constructed upon the property of plaintiff. This is a question of fact for the consideration of the jury. There was considerable evidence on this point submitted by both sides for the consideration of the jury. The court instructed the jury fully upon said matter. The jury, considering the evidence in connection with the court's instructions, found against plaintiff and in favor of defendant, which was a finding that defendant's lines were not constructed upon the property of plaintiff.

This court has repeatedly held that where a case is tried to a jury and there is any competent evidence to support the finding of the jury, this court will not reverse the same on appeal. In the recent case of LeBow v. Tague, 166 Okla. 7,25 P.2d 1101, this court quoted with approval this uniform holding, as announced in the case of Bowles et al. v. Farmers' Nat. Bank of Wewoka et al., 149 Okla. 60, 299 P. 449:

"In a law action tried to a jury, where there is any competent evidence reasonably supporting the verdict of the jury, it will not be disturbed on appeal."

The other questions presented by plaintiff in his appeal to this court relative to damages need not be considered, because the primary question to be determined was whether or not defendant's lines were constructed upon plaintiff's premises, and the court having found adverse to plaintiff thereon, we do not consider it necessary to extensively discuss said matters.

The record discloses that the case was carefully tried to a jury, and that the trial judge fully and carefully instructed the jury upon the issues presented in said matter.

After a full and careful consideration of the record in said cause, we find that no reversible error exists therein.

The judgment of the trial court is affirmed.

SWINDALL, ANDREWS, McNEILL, and WELCH, JJ., concur. RILEY, C. J., and OSBORN, BAYLESS, and BUSBY, JJ., absent.