Sioux City, Railroad Co. v. Brown

• Decision Date: 08 December 1882
• Citation: 14 N.W. 389,13 Neb. 317
• Parties: THE SIOUX CITY, ETC., RAILROAD COMPANY, PLAINTIFF IN ERROR, v. CHARLES H. BROWN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

14 N.W. 389

13 Neb. 317

THE SIOUX CITY, ETC., RAILROAD COMPANY, PLAINTIFF IN ERROR, v. CHARLES H. BROWN, DEFENDANT IN ERROR

Supreme Court of Nebraska

December 8, 1882

ERROR to the district court for Douglas county. Tried below before SAVAGE, J., upon appeal from an award of damages made in the county court in favor of Brown for property in Omaha condemned and appropriated by the railroad.

AFFIRMED.

John D Howe, for plaintiff in error.

C. A Baldwin and Charles H. Brown, for defendant in error.

OPINION

LAKE, CH. J.

We will dispose of the alleged errors in the order followed by the attorney of the plaintiff in error in his brief.

It is complained that the instructions to the jury were erroneous. As to the one given by the judge on his own motion, it is urged that it is "vague and general." It is true that it states a general rule for the jury to observe in determining the amount of damages to be awarded, but it is not open to the charge of vagueness. By it the jury were explicitly told that the owner of the lots taken by the company was entitled to "just compensation" therefor; and that just compensation meant the "fair market value of the property taken, at the time it was taken." Further, that the jury should determine this value "from the testimony of the witnesses," and that "in weighing the testimony of these witnesses," the jury "should consider their ability to judge, their experience in the matters upon which they testify, their freedom from interest in the event of the suit, and their apparent truthfulness," etc. There is nothing in this charge to complain of. If the company desired a more explicit instruction upon any branch of the case, the judge should have been requested to give it. No such request having been made, the presumption is that it was not wished, and it is too late now to complain. Complaint in such case will not be entertained.

Another instruction complained of, and the one which presents the principal question in the case, is that given by request of the defendant in error, by which the jury were told that, in case the value of the lots was found by them to exceed the award appealed from, they should allow interest on that value from the time of condemnation. While there is some little diversity in the ruling of different courts upon the question of the right of an appellant to interest in such cases, it now seems to be firmly settled that, under a statute like ours, where, notwithstanding the appeal, the company may occupy the land, while the owner may not take the money deposited under the award, interest should be added to the value of the land from the time the owner became entitled to compensation. See Pierce on Railroads, 220, and the cases there cited. The cases cited by counsel for the plaintiff in error upon this point, particularly Concord Railroad v. Greely, 23 N.H. 237, and Shattuck v. Wilton Railroad, 23 N.H. 269, do not support him in his position. By the statute under which these two cases were decided, in case of appeal from...