# Otter Tail Power Co. v. Henry Von Bank

> North Dakota Supreme Court · November 2, 1942 · 72 N.D. 497

URL: https://www.frixlaw.com/law-library/cases/3682327

## Case

- **Full name:** OTTER TAIL POWER COMPANY, a Corporation, Appellant, v. HENRY VON BANK, Respondent
- **Court:** North Dakota Supreme Court
- **Decided:** November 2, 1942
- **Citations:** 72 N.D. 497; 8 N.W.2d 599; 145 A.L.R. 1343; 1942 N.D. LEXIS 148
- **Precedential status:** Published
- **Opinion:** Addendum by Nuessle
- **Judges:** Nuessle, Burr, Burke, Morris, Christianson
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Nuessle, J.
(on rehearing). On petition of the appellant a rehearing was granted in this case and a reargument has been had. After further consideration we are agreed that the opinion as heretofore written should stand.
The appellant urged in support of its petition for rehearing that the opinion as written overrules the holding in Tri-State Teleph. & Teleg. Co. v. Cosgriff, 19 ND 771 , 124 NW 75 , 26 LRA(NS) 1171, respecting the interests of abutting landowners in property covered by highway easements; that the holding in the Cosgriff Case was not challenged by either of the parties in the court below or on argument in this court and so the court was not required to pass upon the propriety of that holding; that, in any event, the holding in that case has been recognized and followed for many years -in this jurisdiction without question, has become a rule of property, and pursuant to the doctrine of stare decisis should not now be overruled. The rehearing was granted solely for the purpose of considering the contentions thus advanced in the appellant’s petition.
On the trial of the instant case the value of respondent’s interest in the property subject to the highway easement became material. His contention was that as the owner of the land subjected to the easement he had the right to use it for grass and hay purposes so only such use did not interfere with its use for highway purposes and that this right was an element to be considered in determining the value of his interest and so of his damages. The appellant objected to evidence
*513
of value based on the theory that respondent had such right. This objection was predicated in the final analysis on the holding in the Cosgriff Case, supra. The objection was overruled and the evidence was admitted. Appellant urged error because thereof. It is true that respondent predicated his claim of right to use the land on an agreement made with the highway authorities, but if on any theory the evidence was admissible for the purpose for which it was offered, then the ruling was not erroneous. This being so, and appellant’s contention being predicated on the holding in the Cosgriff Case, that holding was properly subject to examination. If there were a question as to whether the holding was to the effect appellant claimed, or was contrary to reason and authority, then this court was not precluded from limiting or restricting it or even in overruling it.
The rule of stare decisis is a rule of policy grounded on the theory that when a legal principle is accepted and established, rights may accrue under it and security and certainty require that the principle be recognized and followed thereaftér even though it later be found to be not legally sound. To a certain extent this is true. But the rule is not sacrosanct. Whether or 'not a holding shall be adhered to or modified or overruled, is a question within the discretion of the court under the circumstances of the case under consideration. Hertz v. Woodman, 218 US 205 , 54 L ed 1001, 30 S Ct 621 .
In Donovan v. Allert, 11 ND 289 , 91 NW 441 , 58 LRA 775, 95 Am St Rep 720, this court citing the case of Northern P. R. Co. v. Lake, 10 ND 541 , 88 NW 461 , and in line with the practically unanimous voice of authorities, held that the abutting owner owned the fee tit-le to land subject to an easement for street and highway purposes and had every right of an owner therein not inconsistent with the purposes for which the easement was granted. And this holding was recognized in the case of Cosgriff v. Tri-State Teleph. & Teleg. Co. 15 ND 210 , 107 NW 525 , 5 LRA (NS) 1142. While the holding in the later Cosgriff Case, 19 ND 771 , 124 NW 75 , 26 LRA (NS) 1171, supra, may be considered to be to some extent a rule of property, it should not be applied under the circumstances shown in the instant case in so far as it conflicts with the holding in the Donovan Case.
*514
Here the easement was acquired in order to “streamline” the highway. The land subjected to it would, in all probability, never be used for purposes of travel. As shown by the resolution of the county commissioners they believed it would be beneficial to the highway use to have the land in question sown to grass and hay by the abutting owner. This was clearly evidenced by their willingness to provide the seed for such sowing. It is true, as stated in the opinion as originally written, the rulings of the trial court of which the appellant complained may be sustained on the ground that the respondent’s claim to the right to use the land subject to the highway easement for agricultural purposes stemmed from his agreement with the highway authorities. But to so dispose of the case without making reference, to the holding in the Cosgriff Case and expressing our views with respect to that holding would tend to further éntrench a rule which we think,is not correct and should not be followed.
As this court said in the case of Hart-Parr Co. v. Finley, 31 ND 130 , 153 NW 137 , LRA1915E 851, Ann Cas 1917E 706, in overruling the holding in an earlier case: “There is no desire to lightly overrule any precedent but at times it is as wise as it is necessary to recognize a mistake when convinced that it is such. Counsel concede, as they must, that the almost unanimous weight of authority and precedent support our action and the conclusions- announced. It is deemed better to overrule this precedent, than by citing it indirectly affirm it.”
See also in this connection, Erie R. Co. v. Tompkins, 304 US 64 , 82 L ed 1188, 58 S Ct 817 , 114 ALR 1487 ; Truxton v. Fait & S. Co. 1 Penn (Del) 483, 42 A 431, 73 Am St Rep 81, and note at page 98; 14 Am Jur 341, Courts and cases cited in note 12.
Morris, Ch. J., and Burke and Burr, JJ., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3682327. Public record. Not legal advice.