I agree with the disposition that is made of this case in the principal opinion and in the opinion on rehearing prepared by Judge Nuessle and with the principles stated in the syllabus. I am inclined to the view, however, that the decision of this court in Tri-State Teleph. Teleg. Co. v. Cosgriff, 19 N.D. 771, 124 NW 75, 26 LRA(NS) 1171, does not actually constitute a precedent contrary to what is decided in this case. It is true there are *Page 515 certain expressions in the principal opinion in the Cosgriff Case contrary to the principle announced in paragraph three of the syllabus in this case; but I do not believe that such expressions can be said to constitute the decision of this court upon a question that was directly involved in the issues and necessary to a decision, and actually decided by the court, so as to give rise to the application of the doctrine of stare decisis.
"The doctrine of stare decisis only arises in respect of decisions directly upon the points in issue. Positive authority of a decision is coextensive only with the facts on which it is made." 11 Enc. U.S. Sup. Ct. Rep. pp. 28, 29; Pollock v. Farmers' Loan T. Co. 157 U.S. 429, 574, 39 L ed 759, 817, 15 S Ct 673; Sturges v. Crowninshield, 4 Wheat. (US) 122, 207, 4 L ed 529, 551; Federal Farm Mortg. Corp. v. Falk, 67 N.D. 154, 171, 270 NW 885, 893, 113 ALR 737. "To make an opinion a decision there must have been an application of the judicial mind to the precise question necessary to be determined in order to fix the rights of the parties." 14 Am Jur 293; Cohen v. Virginia, 6 Wheat. (US) 264, 5 L ed 257.
To constitute a precedent, within the rule of stare decisis, an opinion must be the decision of the court on the particular question. A decision affirmed by reason of an equal division of the members of the appellate court is not binding as a precedent. 21 CJS p. 307. A decision concurred in as to the result only by a majority of the court is not within the rule of stare decisis, although it is entitled to consideration as to the views of the judges who joined in the opinion. 21 CJS p. 305. A concurrence in the same general result by separate opinions, none of which constitutes the deliberate and unqualified decision of the majority, does not establish a precedent unless the separate opinions show that the judicial mind was applied to a particular question necessary for decision, and that there was a deliberate and unqualified "agreement by a majority of the court on the particular question or questions constituting the ground of the decision." 21 CJS p. 306.
The controversy involved in Tri-State Teleph. Teleg. Co. v. Cosgriff, 19 N.D. 771, 124 N.W. 75, 26 LRA(NS) 1171, supra, came before this court first in Cosgriff v. Tri-State Teleph. Teleg. Co. 15 N.D. 210, 107 N.W. 525, 5 LRA(NS) 1142. The telephone company *Page 516 had obtained the consent of the township supervisors to construct its telephone and telegraph line along and within the limits of a rural highway located upon a section line. Cosgriff, and those who joined with him as plaintiffs in that action, owned lands abutting upon the highway. Such landowners had not consented to the construction of the line by the telephone company and brought action to enjoin the telephone company from constructing and operating the line. In this court it was "agreed that the sole and controlling question" was "whether the construction of a telephone and telegraph line upon a rural highway constitutes an additional servitude on the fee of the abutting owners." 15 N.D. 214, 107 N.W. 526, 5 LRA(NS) 1142. This court held that the construction and operation of such line constituted an additional servitude which entitled the abutting owner to compensation. In so holding, this court applied the rule announced in Donovan v. Allert, 11 N.D. 289, 91 N.W. 441, 58 LRA 775, 95 Am St Rep 720, that the construction of a telephone line upon the streets of a city imposes a new servitude on the fee of the abutting owner for which he is entitled to compensation, and held this rule to be equally applicable to an owner of lands abutting upon a rural highway. The court said: "The underlying principle which must govern is the same, however, in either case. The proposed use must be within the purpose of the original dedication. If it is not, it constitutes an additional servitude, whether it be of a street or rural highway. Cases like this primarily involve a determination of property rights, and, where it is held that a new servitude is imposed, it follows necessarily that the fee owner is entitled to relief. The point of difference, and it is the only one which can logically serve as a basis for different conclusions, is as to the original purpose of the grant of the easement. Rights which have been granted to the public cannot be claimed by the abutting landowner. Such rights as have not been granted to the public remain in him and should be protected to the same extent as any other property. . . . If telephone companies require the use of private property for the construction of their lines, they have the power of acquiring it by condemnation, but they may not, in our opinion, lawfully take it without first making compensation." 15 N.D. 215, 107 N.W. 526, 527, 5 LRA(NS) 1142. *Page 517
The court was urged to overrule Donovan v. Allert and to hold that the original purposes of the dedication of a street or highway include the transmission of intelligence and that consequently the maintenance of a telephone and telegraph line upon a street or highway is a proper street or highway use within the purposes of the grant of easement. The court did not content itself by a mere statement that it adhered to the rule in Donovan v. Allert. It re-examined the rule announced in the Donovan Case in light of subsequent decisions of other courts, reaffirmed the principle of the Donovan Case, and held that the plaintiffs there were entitled to an injunction restraining the telephone company from constructing and operating its line on the highway upon which plaintiff's lands abutted. Cosgriff v. Tri-State Teleph. Teleg. Co. 15 N.D. 210, 107 N.W. 525, 5 LRA(NS) 1142.
The decisions in Donovan v. Allert and Cosgriff v. Tri-State Teleph. Teleg. Co. were unanimous.
Subsequent to the decision in Cosgriff v. Tri-State Teleph. Teleg. Co. the telephone company brought condemnation suit. A verdict was returned for the defendants and the telephone company appealed. It is the decision on that appeal which is referred to in paragraph three of the syllabus in this case. In that case counsel for the telephone company again urged that the construction and operation of a telephone and telegraph line on the highway, upon which the lands of the defendants abutted, did not constitute an additional servitude, and that the rule announced in Donovan v. Allert and in Cosgriff v. Tri-State Teleph. Teleg. Co. ought to be overruled. Error was also predicated upon rulings on evidence and upon instructions to the jury, given and refused.
The case was argued before a court composed of four judges of this court and a district judge, who had been called to sit in the place of a member of this court who deemed himself disqualified. Such district judge did not participate in the decision. Only the four judges of this court participated in the decision. 19 ND p. 781, 124 N.W. 75, 26 LRA(NS) 1171.
The principal opinion in the case was written by Judge Ellsworth. It was signed by only two of the members of the court. Judge Carmody *Page 518 wrote a concurring opinion in which Judge Spalding joined. That opinion reads as follows:
"I concur in the result arrived at in the opinion of Judge Ellsworth, but do not agree to all that is said in that opinion. The measure of damages of the defendant for the 8-foot strip in the highway actually taken by the plaintiff is set forth in that opinion as follows:
"`The reasonable present cash market value of the land actually occupied by plaintiff for the use and purpose proposed, exceeding in no instance the present market value of the entire 8-foot strip, taking into consideration that such strip is within the limits of a public highway and subject to a public use for highway purposes; that in no instance could a greater sum be allowed as damage than would be allowed if the highway right of user was not upon the land so sought to be condemned.' This measure of damages, inferentially, at least, might lead the jury to believe that the defendant was entitled to the full market value of the land so taken, when, as a matter of fact, it was already in use for highway purposes, and the defendant had at best only a reversioner's interest. In most cases the damage to his interest would be merely speculative and not more than nominal. It seems to me that a more correct measure of damages would be the reasonable present cash market value of the defendant's interest in the land actually occupied by plaintiff for the use and purpose proposed, taking into consideration that such strip is within the limits of a public highway and subject to a public use for highway purposes."
The language in an opinion of a court must be construed in the light of the facts and circumstances in the case in which it was rendered. 26 Am Eng Enc Law, 2d ed, p. 169. Where there are separate and diverse opinions, they must be read and examined as a whole in light of the record and facts in the case, and the judgment pronounced by the court. The judges may agree upon the judgment, and yet there may be no such agreement on a question of law presented for determination as to render the decision in the case an authority one way or the other on such question. Woodruff v. Parham, 8 Wall. (US) 123, 139, 19 L ed 382, 387.
The two opinions in Tri-State Teleph. Teleg. Co. v. Cosgriff, show a definite and unqualified agreement of the judges only, "in the *Page 519 result arrived at in the opinion of Judge Ellsworth," namely, that the judgment be reversed and that a new trial be had. 19 ND p. 781, 124 N.W. 75, 26 LRA(NS) 1171.
It does not seem to me, it can be said there was any decision of the court in that case to the effect that an owner of land that abuts upon a highway is a trespasser if he uses for agricultural purposes a portion of the land within the highway easement, which is adjacent to his property, but in such manner as not to interfere in any way with the full public use of the highway.
I am not aware that there has been any recognition that the rule contended for by the plaintiff was established by Tri-State Teleph. Teleg. Co. v. Cosgriff, or that such rule constituted the law in this state. Nor am I aware that any claim has been advanced in the courts of this state to that effect. Certainly the claim has never been advanced in this court, and while the rule announced in Donovan v. Allert and the Cosgriff v. Tri-State Teleph. Teleg. Co. has been repeatedly invoked and reaffirmed, I am unable to find any case in this court in which the decision in Tri-State Teleph. Teleg. Co. v. Cosgriff has been cited at all. The legislature, however, has expressly recognized the right of abutting landowners to make appropriate use of land within the highway easement, and has authorized cattle guards and gateways to be constructed across highways under certain conditions. Laws 1931, chap. 152.
"The rule stare decisis has for its object the salutary effect of uniformity, certainty, and stability in the law." 14 Am Jur 283, Courts. It follows as a necessary corollary that a decision which fails to evidence a positive and definite determination bythe court of a question necessary for determination in the case, does not become binding authority upon such question within the rule of stare decisis, merely because the question is discussed in an opinion, which does not have the full approval of a majority of the court. In order to constitute such precedent, there must be no doubt that the court has spoken on the subject.
In my opinion there was no decision by this court in Tri-State Teleph. Teleg. Co. v. Cosgriff, which promulgated or operated to *Page 520 establish a principle to the effect contended for by the plaintiff in this case; and the expressions in the principal opinion upon which plaintiff lays stress are not precedent within the rule of stare decisis.