Oregon Mesabi Corp. v. C. D. Johnson Lumber Corp.

169 F.2d 640

Opinion

PER CURIAM.

The appellee moves for a recall of the mandate and for a modification of our judgment and the mandate to provide:

“The judgment [below] is modified by striking out the phrase ‘and said lands are appropriated to and vested in the said plaintiff as an unlimited easement with the right to the exclusive use thereof, subject to the right of the defendant, Oregon Mesabi Corporation, to make such neces- . c . , . , , , sary crossings of said right of way as will not unreasonabiy interfere with the use of said riSht of wa7 b7 Plaintiff and inserting in lieu tbereof ‘and said lands are appropriated to tbe said Plamtlff as an ordinary easement subject to the right of the defendant, Oregon Mesabi Corporation, to make sudl use of sald rl£bt of -wa7 as wl11 not unreasonably interfere with the use of sadd °f way ky plaintiff as a logging road-

“The judgment as thus, modified is affirmed.”

The district court may cons¡der ^ offer Qf ^ dlee ¡n connection with the making of ks complaint more definite as t0 ^ property sought tQ be condemned< 0n proper pleadings the question of damages may then be tried. This court is in no position to assess damages either as to the effect of the condemnation on the logging costs of appellant, of the increased fire hazard or other factors detrimental to appeljant

The motion is denied.