Brakken v. Minneapolis & St. Louis Railway Co.

Berry, J.1 Upon mature consideration of all the proceedings in the court below, we see no substantial reason for disturbing the order refusing a new trial in this case. Upon the whole, the result was sustained by the evidence; and, though there may have been technical errors in the proceedings, there are none sufficiently important or material to affect the substantial justice of the verdict. The plaintiff, in his complaint, claimed an easement in a certain street or road, from the enjoyment of which he was cut off by defendant’s track excavation. We can conceive of no reason why he might not establish his easement by proof either of a public or private street or road. He seems to have introduced evidence upon the basis that if he failed to prove one, he might succeed in proving the other, and that it would be sufficient if he established either. There was evidence from which either might have been found by the jury. Upon this point it must be borne in mind that Mrs. Mary F. Wedge (afterwards Armstrong) and Clarence Wedge ivere the sole heirs-at-laio of Lucius P. Wedge, and the ■sole devisees under his will of the real property to which the present controversy relates. To our minds this is a fact of capital importance in this case. It gives great force and significance, by way of estoppel, acquiescence, and ratification, to the acts and conduct of Mrs. and Clarence Wedge, and in support of the plaintiff’s claim of easement. It makes much evidence, otherwise, perhaps, of doubtful competency and materiality, clearly applicable to the issues in the case. In reference to the matter of damages on account of the defendant’s obstruction of plaintiff’s way, this court, when this case was here before, (29 Minn. 41, 45,) defined the proper measures of damages to be “the difference between the fair rental value of the property with the railroad crossing in its present improper condition, and its rental value with the crossing in a proper condition.” The ap [48] plicability of this rule of damages is in nowise affected by the fact that the property was not rented, but was occupied by plaintiff himself. As applied to that state of facts the rule is not unfair nor unjust. "With reference to the charge, we are of opinion that, taken as a whole, and as applicable to the material issues and material facts in evidence, it instructed the jury with substantial correctness. It perhaps contains some inaccuracies as to matters not important in this ease, and others which might be more or less material were they not corrected in other places. The court was evidently endeavoring to make the applicable rules of law clear to the minds of the jury, and, in an effort to do this, a charge not infrequently becomes unnecessarily diffuse; and, in restating and illustrating propositions of law, it often fails to repeat every qualification necessary to accuracy. But common fairness and common sense require that a charge should be considered as a whole, and if, upon such consideration, it is found to instruct the jury with substantial correctness, it ought to stand. Order affirmed. Footnotes [1] Mitchell, J., being absent during the argument, took no part in this case.