[Download] "Komposh v. Powers Et Al." by Supreme Court of Montana * Book PDF Kindle ePub Free
eBook details
- Title: Komposh v. Powers Et Al.
- Author : Supreme Court of Montana
- Release Date : January 27, 1926
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 67 KB
Description
Eminent Domain ? Constitution ? Private Roads ? Necessity for Establishment ? Instructions ? Special Interrogatories ? Discretion ? New Trial ? Newly Discovered Evidence ? Verdict ? Impeachment by Jurors ? Trial ? Evidence ? Objections ? Appeal and Error ? Conflict in Evidence ? Judgment Conclusive. Constitution ? Eminent Domain ? Public or Private Use ? Question for Courts. 1. The taking of private property for the private use of another violates the Fourteenth Amendment to the federal Constitution, and the legislature has not the power to declare that that which is in truth a private use shall be a public one, the question whether a particular use is a private or public one being determinable by the courts. - Page 494 Eminent Domain ? Highways ? Private Road ? Establishment ? When not Open to Constitutional Objection. 2. Whether a way is a public or private one is determined by the extent of the right to use it, not by the extent to which that right is actually exercised; and if a private road sought to be established under section 9955, Revised Codes of 1921, leading from a public highway through lands of a private owner to those owned by plaintiff, may be used by the public generally, although others than plaintiff may have slight occasion to use it, the statute authorizing its establishment as section 9955 does, under such circumstances is not open to constitutional objection. Trial ? Evidence ? Overruling Objection to Question Answered Prior Thereto ? Harmless Error. 3. If error was committed in overruling an objection to a question which had theretofore been answered fully, it was harmless and insufficient to warrant reversal of the judgment. Eminent Domain ? Private Road ? Complaint ? Description of Lands ? When Sufficient. 4. Description of lands sought to be condemned for a private road required by section 9940, Revised Codes of 1921, to be set forth in the complaint, is sufficient if it is definite enough to identify the lands. Appeal and Error ? Conflict in Evidence ? Judgment Conclusive. 5. The trial courts determination on conflicting evidence will not be disturbed on appeal if there is substantial evidence to sustain it. Eminent Domain ? Private Road ? Necessity Therefor ? Correct Instruction. 6. An instruction as to the necessity of the establishment of a private way, to the effect that plaintiff was not required to show an absolute or indispensable necessity therefor, but that if a reasonable necessity was shown it was sufficient to warrant a finding in favor of plaintiff, was a correct statement of the law. Instructions Given are Law of Case ? Jury ? Presumption. 7. Instructions given constitute the law of the case, and in the absence of anything to indicate the contrary, it will be assumed on appeal that the jury followed them. Trial ? Jury ? Special Interrogatories ? Discretion. 8. The propriety of submitting a special interrogatory to the jury lies within the discretion of the trial court, and in the absence of a showing of abuse thereof, refusal to submit it is not subject to correction on appeal. Eminent Domain ? Private Road ? Damages ? Commissioners ? Appointment not Required. 9. Under sections 1765 and 9955, Revised Codes of 1921, authorizing the establishment of a private road, the appointment of commissioners to determine the damages occasioned thereby, etc., is not necessary, the matters - Page 495