American Coal Briquetting Co. v. Minneapolis, St. Paul, & S. Ste. Marie Railway Co.

170 N.W. 568, 41 N.D. 381, 1918 N.D. LEXIS 152

• Court: North Dakota Supreme Court
• Decided: November 30, 1918
• Status: Published

Opinions

Robinson, J.

The complaint avers that in April, 1915, the plaintiff owned certain buildings and property on section 12-160-80, of the value of $7,000. That in operating its line of road which runs northwest from Minot, defendant by its locomotive engine started a prairie fire on going up the hill from Kenmare, and that the fire extended to and burned up the property. The answer is a general denial.

As appears from the map, section 12 is 4 miles east and 2 miles north from Kenmare, and it is 5 or 6 miles from any point on the railroad. The jury found a verdict for $1,700. The appeal presents two questions: (1) Does the testimony fairly show that the locomotive set the fire? (2) Was-the property of any special value?

Though it is very doubtful, it may be conceded that in regard to the .setting of the fire there was evidence sufficient for the jury, and though there is some reckless testimony, there is really no evidence that the property had any real value at the time of the fire. It had been so long abandoned the presumption is that it- was of no value. The property consisted mainly of temporary frame buildings which had been constructed in 1902, and they bad been used about four or five years in tbe operation of a coal mine, and for ten years tbe mine and tbe buildings bad lain vacant and abandoned; and of course, during sucb time tbe property bad rapidly depreciated in value and bad come to wreck and ruin. Tbe.grass and weeds.bad grown up from year to year so as to almost cover tbe buildings. The property bad been completely abandoned and left without the least care or protection. It was not even thought of sufficient value to make it worth while to protect it by plowing a fire break around it. There is some testimony in regard to tbe cost price of tbe property and considerable reckless testimony, but no evidence in regard to tbe value of tbe property at tbe time of tbe burning. There is nothing to show the possibility of malc-ing cm honest dollar from the renting of the property, the use of it, or the wrecTcing of it, or the sale of it. When tbe mine played out and ceased to pay operating expenses, tbe mining property lost its value and it was abandoned and allowed to go to wreck and ruin.

The value of tbe property depends, not on its cost, but on its utility or productiveness. The walls of Londonderry, tbe pyramids of Egypt, tbe walls of China, have ceased to be of any valúe. Tbe same is true of thousands of buildings and mining properties that were once valuable. Doubtless, ten years prior to tbe fire, tbe property in question would have been of some value to tear down and sell as wreckage. There was no evidence that it bad any sucb value at tbe time of tbe burning, and tbe burden of proof was on the plaintiff.