Eminent Domain

Condemnatory Proceedings - Compensation.

2. If, for any reason, the jury determines the amount of the said benefits, the trial court should disregard such determination as surplusage, and order judgment for the amount of the full damages, if the amounts can be separated. Eminent Domain - Condemnation Proceedings

Benefits.

Compensation

Allowing

3. In this case the jury found the full damages to the tract sought to be condemned, and made an independent finding as to the amount the tract was benefited. It was the duty of the trial court to order the entry of judgment for the amount of the full damages.

Opinion filed February 8, 1911.

Appeal from District Court, Traill county; Pollock, J.

Condemnation proceedings by Sven Heskin and others, as the coun-ty board of drain commissioners of Traill county, against Peter Herbrandson and others. From the award, certain defendants appeal. Modified.

P. G. Swenson and Engerud, Holt, & Frame, for appellants.
Theo. Kaldor and Charles A. Lyche, for respondents.

BURKE, J. The plaintiffs, the board of drain commissioners of Traill county, North Dakota, prosecuted this action to condemn lands for a right of way for Mikkelson drain No. 13. The trial resulted in a finding by the court that there was a necessity for the drain, and a special finding by the jury determining in separate items the amount of the damages to the several tracts and also the amounts that each tract had been benefited by the drain. The proceedings are conceded to have been regular to this point. After the return of the findings by the jury, the board asked that judgment be entered in favor of the landowners for the net damages; to wit, the difference between the damages and the benefits; while the landowners contended that they were entitled to the full damages found by the jury, and that the de-termination of the benefits was a matter properly to be considered later by the board of drain commissioners. The trial court subtracted the amount of the benefits of each tract from the damages to said tract,

and ordered judgment entered for the difference. From this order an appeal has been taken to this court.

Section 1826, Revised Codes 1905, reads that "upon acquiring the right of way [they, the drainage board] shall assess the per cent of the cost of constructing and maintaining such drain, etc.,” and (§ 1831) "shall make a list showing the amount which each tract of land benefited by the drain

pay,

is liable to

and the auditor shall thereupon extend upon the tax lists as a special tax, the several amounts shown by the

drain commissioners' lists."

Construing the above sections, Judge Spalding, in the case of Ross v. Prante, 17 N. D. 266, 115 N. W. 833, says: "We are of the opinion that a fair construction of the drainage law warrants the conclusion that it was not contemplated that the question of benefits should be submitted to the jury. We are fortified in the opinion by consideration of some reasons which appear clearly applicable. The benefits of a drain usually extend to land for several miles, and apply to different parties. If the jury were to consider the benefits applicable to the property of one owner alone ... it would have to know the requirements necessary to carry off the water from the particular tract, and ascertain the size of the drain, its slope, and its length, the requirements of all the other tracts affected, and many other facts which it is utterly impracticable to present to a jury."

These, and other reasons advanced in said opinion, make it clear that the legislature did not intend that the jury in the condemnation suits should consider the benefits to the various tracts. If it were necessary to add to the reasons already given, is it possible to imagine a case where the benefits to one farm are greater than the entire cost of the drain? It will not be seriously contended that the owner of such farm must lose his award of damages for land taken, while his neighbors, not being parties to the suit because not touched by the drain, escape although equally benefited.

Any drain, if properly constructed, should yield benefits many times its cost. Lands many miles back are benefited. The owner of land taken for right of way is entitled to just compensation for the land taken from him, and he is not required to donate his benefits. If he pays his just proportion of the cost of the drain, he is entitled to all the new wealth created thereby upon his lands.

One other question arises. The drain board claims that submission of the question of benefits to the jury tended to confuse the issues, and resulted in a finding of excessive damages. This is only conjecture. This appeal is from the order of the trial court in entering judgment upon the verdict. No statement of the case has been settled, and the board has not appealed. The question is therefore not properly before us; but from the verdict we learn that the jury allowed $35 per acre for the land actually taken, and additional amounts for damages done to the remaining farm. The verdict was probably well supported by evidence, and those amounts do not seem excessive.

The trial judge should have treated the finding of the jury as to the several items of benefits as surplusage, and ordered judgment for the full amounts of the damages found.

The order appealed from is modified to conform to this opinion. Appellants will recover their costs.

All concur, except MORGAN, Ch. J., not participating.

1. In an action to recover on a beneficiary certificate, the sole issue was whether the insured committed suicide, which, under the terms of the insurance contract, exonerated the defendant society from liability. After the case was called for trial in the district court, defendant asked leave to amend its answer by alleging an additional and new defense predicated upon alleged fraud and breach of warranty on the part of the insured in effecting such insurance. Held, for reasons stated in the opinion, that it was not an abuse of discretion to deny such motion.

Pleading-Amendment - Discretion.

2. Trial courts are vested with a broad discretion in the matter of permitting or refusing amendments to pleadings, especially where, as in the case at bar, the proposed amendment, if granted, would necessitate a continuance of the cause over a term.

Note. Presumption as to suicide, see note in 35 L.R.A. 263.

Life Insurance - Suicide - Question for Jury - Directed Verdict.

3. It is stipulated as a fact that the insured came to his death by means of strychnine poisoning, but whether such strychnine was administered by deceased, and, if so, whether the same was thus administered with suicidal mtent, is left to mere inference by the testimony, and was a question of fact for the jury, and not a question of law for the court to decide. It is accordingly held that the trial court properly denied defendant's motion for a directed. verdict.

Life Insurance - Suicide - Evidence - Presumption - Burden of Proof.

4. The law presumes that the insured did not commit suicide, but that the strychnine was administered through accident or mistake, and the burden of proof is upon defendant to overcome such presumption.

Trial-Question for Jury.

5. Where a fact in issue rests solely upon inferences to be deduced from other facts, and it can be said that reasonable men might fairly differ as to the inferences to be deduced from all the circumstances disclosed, it is a proper case for the jury.

Appeal and Error-New Trial.

6. An appeal from a judgment alone is ineffectual to bring up for review an order made subsequent to judgment denying a new trial.

Instructions - Exception - Review.

7. Instructions not excepted to cannot be reviewed. The designation by counsel of certain portions of proposed instructions submitted to them pursuant to the provisions of § 7021, Rev. Codes 1905, is not equivalent to the taking of exceptions, as required in the following section.

Opinion filed February 10, 1911.

Appeal from District Court, Cass county, Chas. A. Pollock, J. Action by Jens Paulsen against Modern Woodmen of America, judgment in favor of plaintiff, defendant appeals.

Affirmed.

Benjamin D. Smith and V. R. Lovell, for appellant.

Amendments should be allowed to save rights and advance justice.. Coghlin v. Stetson, 22 Blatchf. 88, 19 Fed. 727; Conner v. Smith,. 74 Ala. 115; Miller v. Metzger, 16 Ill. 390; Trego v. Lewis, 58 Pa. 463; Newberg v. Farmer, 1 Wash. Terr. 183; Milch v. Westchester F. Ins. Co. 13 Misc. 231, 34 N. Y. Supp. 15; Union Bank v. Ridgley, 1 Harr. & G. 324.

Breach of warranty in application for life insurance is a valid de

fense. 3 Cooley, Briefs on Insurance, 1950, and cases cited; Bacon, Ben. Soc. 197; McDermott v. Modern Woodmen, 97 Mo. App. 636, 71 S. W. 833; Modern Woodmen v. Van Wald, 6 Kan. App. 231, 49 Pac. 782; Baumgart v. Modern Woodmen, 85 Wis. 546, 55 N. W. 713; Genrow v. Modern Woodmen, 151 Mich. 250, 114 N. W. 1009. Suicide as a defense to a claim for insurance may be shown by circumstantial evidence. Sovereign Camp, W. W. v. Haller, 24 Ind. App. 108, 56 N. E. 255; Germania L. Ins. Co. v. Ross-Lewin, 24 Colo. 43, 65 Am. St. Rep. 215, 51 Pac. 488; Brignac v. Pacific Mut. L. Ins. Co. 112 La. 574, 66 L.R.A. 322, 36 So. 599; Supreme Tent, K. M. v. King, 73 C. C. A. 668, 142 Fed. 678; Lindahl v. Supreme Court, I. O. F. 100 Minn. 87, 8 L.R.A. (N.S.) 916, 117 Am. St. Rep. 666, 110 N. W. 358.

May be shown by a fair preponderance of the evidence. Kerr v. Modern Woodmen, 54 C. C. A. 655, 117 Fed. 593; Sharland v. Washington L. Ins. Co. 41 C. C. A. 307, 101 Fed. 206; Brown v. Sun L. Ins. Co. Tenn., 51 L.R.A. 252, 57 S. W. 415; Knights of Pythias v. Steele, 107 Tenn. 1, 63 S. W. 1126; Bachmeyer v. Mutual Reserve Fund Life Asso. 87 Wis. 325, 58 N. W. 399; Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 76 Am. St. Rep. 905, 80 N. W. 1020; Pagett v. Connecticut Mut. L. Ins. Co. 55 App. Div. 628, 66 N. Y. Supp. 804; Johns v. Northwestern Mut. Relief Asso. 90 Wis. 332, 41 L.R.A. 587, 63 N. W. 276; Sovereign Camp, W. W. v. Hruby, 70 Neb. 5, 96 N. W. 998; 1 Greenl. Ev. § 13a.

The presumption against death is a rebuttable one. Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 76 Am. St. Rep. 905, 80 N. W. 1020; White v. Prudential Ins. Co. 120 App. Div. 260, 105 N. Y. Supp. 87; Supreme Tent, K. M. v. King, 73 C. C. A. 668, 142 Fed. 678; Travellers' Ins. Co. v. McConkey, 127 U. S. 661, 32 L. ed. 308, 8 Sup. Ct. Rep. 1360; Somerville v. Knights Templars & M. Life Indemnity Asso. 11 App. D. C. 417; Johns v. Northwestern Mut. Relief Asso. 90 Wis. 332, 41 L.R.A. 587, 63 N. W. 276; Sackberger v. National Grand Lodge, I. O. T. L. 73 Mo. App. 38; Clement v. Clement, 113 Tenn. 40, 81 S. W. 1249; Cooley, Briefs on Insurance, 3256; Hardinger v. Modern Brotherhood, 72 Neb. 860, 101 N. W. 983, 103 N. W. 74; Clemens v. Royal Neighbors, 14 N. D. 116, 103 N. W. 402, 8 A. & E. Ann. Cas. 1111.