Burlington & M. R. R. Co. v. Beebe

Decision Date09 October 1883
Citation16 N.W. 747,14 Neb. 463
PartiesBURLINGTON & M. R. R. CO. v. BEEBE.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Error from Seward county.Norval Bros. and Marquette & Deweese, for plaintiff.

McKillip & Page and Harwood & Ames, for defendant.

COBB, J.

The first point raised by the plaintiff in error in his brief is that plaintiff's title to the land upon which the growing timber was damaged by fire having been put in issue by the answer was not sufficiently proved to entitle the plaintiff to recover. This being an action for the negligence of the servants of the defendant, is in the nature of an action on the case, as actions were classified before the adoption of the Code, and as the injury complained of was to the property itself, and not to the plaintiff's possession thereof, the title was a material point in the case, not only to be alleged in the petition, but to be proved on the trial, unless admitted by the defendant. But while it is true that in this state a perfect title to land must be derived from the government of the United States, and must be based either upon a grant or patent to the person claiming such title, his ancestor or grantor, or upon a possession within the statute of limitations, yet the possession of such title is only necessary to discharge the obligations of a covenant of title or to defend against a lesser one. For all other purposes which occur to the writer, actual possession under claim of right and without badge of servitude is sufficient prima facie. If this position is correct, then, when the plaintiff proved that he was in the actual possession of the injured premises, claiming title thereto, the burden was thrown upon the defendant to prove title out of the plaintiff in order to avail itself of the defense raised by the point under consideration. No such proof being offered, the plaintiff must, for the purposes of this case, be deemed as possessed of the title to the land in question.

The second point is as to the competency of one of the jurors to sit on the jury, as disclosed upon his examination, as follows:

Question. Do you know anything about this case? Answer. I have passed over the burnt district. Q. Have you formed such an opinion as would hinder you from giving an unbiased verdict in this case? A. I don't think it would be biased in any way.

Cross-examination: Q. You have talked with the neighbors about this fire? A. No. All I know is from passing over it. Q. From what you have seen and heard, have you or not formed any opinion as to which should recover? A. I have not. Q. You have formed no opinion as to the right to recover anything? A. No, sir. Only passing by and seeing where the fire had passed. Q. Did you have any conversation with them as to how the fire had originated? A. No, sir. Q. Then you can have no opinion in this case, unless you have heard and discussed the facts, could you? A. No, sir. I know nothing about it,--whether it originated from the railroad or some individual. I don't know anything about it only from local reports. Q. Did you say in your direct examination that you thought the plaintiff ought to recover? A. No, sir. Mr. Beebe made the remark that considerable damage was done. Q. Do you know the particular location of this 40 acres? A. No, sir. Seven years ago he offered to sell it to me. Q. You know about the character of the trees and the size of them, do you? A. I have not been on this piece of timber for six years. Q. Then you don't know the extent of the damage? A. No, sir. Q. You have not seen the district since the fire occurred? A. No, sir. Only in passing, and that is nearly a mile--no, probably a half-mile--from it. Q. In this case, suppose no evidence was offered but what you know of the matter now, would you be of the mind that the plaintiff should recover or not? A. I know nothing about it. I don't know whether the plaintiff owns the timber or not. Q. Suppose the defendant offers in evidence what you know of the matter now, and no further testimony is offered in the case, would you, as a juryman, say that the plaintiff ought to recover. A. Well, yes. From a certain local idea of the fire and seeing it at that distance. Q. Without any further testimony you would say the plaintiff ought to recover? A. Yes, sir.

Redirect examination: Q. Do you say that he ought to recover from the railroad company? A. I don't know. I would have to have testimony as to who did the damage. Q. Simply from seeing this timber land there, you think somebody ought to pay for it? A. Yes, sir. Q. You don't mean to say you think that the railroad company ought to recover or somebody else? A. I don't know who should recover, any more than I know that the fire damaged the man's timber by running through it.

Examination by the Court: Q. Have you formed an opinion as to how much damage has been sustained? A. No, sir; I have not. Q. You don't know anything about the amount of damage done? A. No, sir. Q. Nor the cause of the damage? A. No, sir. Q. Nor how it was caused? A. Only what I hear through the country. Q. Would that influence you in forming your verdict? A. No, sir.”

It will thus be seen that the examination of the juror was thorough and exhaustive; the object on the part of defendant's counsel evidently being to make the fact of the juror having passed along the road and seen where a fire had been running among the young and growing timber, disqualify him to sit upon the jury in the case. When it is borne in mind that the average juryman is not expected to pass a successful examination in logic or casuistry on short notice, it must be apparent that the exhaustive examination of this one signally failed to show him possessed of partialty as between the parties, preconceived opinion as to the merits of the case, or of temper, such as would disable him to find a fair and impartial verdict upon the testimony in the case.

The third point made by the plaintiff in error is upon the admission of certain testimony introduced by the plaintiff in the court below for the purpose of proving the measure of damage to the timber land of the plaintiff by the fire set out by the engine of the defendant, and it urges the point that by the admission of such testimony the witnesses for the plaintiff were allowed to usurp the province of the jury in fixing the amount of plaintiff's damages.

The following quotations from the bill of exceptions show upon what foundations this point is based. The plaintiff, being on the stand as a witness in his own behalf, and not having been examined as to his occupation or means of knowledge of the value of lands or other property, is asked the following questions on the part of plaintiff:

Question. Do you know the value of this land just before the timber was burned--before this fire went through it? Answer. Yes, sir; I know the value of it. Q. What was it before the fire went through it? A. I would not have taken less than four hundred dollars for what it went over. (On motion of defendant this answer was stricken out as irresponsive to the question, and incompetent.) Q. The question is, what was the value of this forty acres of timber,--not what you would have taken for it, but what was it worth? A. It was worth what I said. Q. I mean the forty acres--all of it. A. It was worth eight hundred dollars. Q. What was it worth after the fire went through it? (Defendant objects as being incompetent. Witness has not shown himself competent to answer, and calls for a conclusion. Motion overruled, and defendant excepts.) A. It was worth-- That's a pretty hard question to answer. Did you consider the burnt timber worth anything? Q. That is for you to say. What was the diminished value? What was it worth after the fire went through it? A. Worth five hundred dollars or six hundred dollars. Q. What was the diminished value of the land? What was the damage done by that fire? (Defendant objects as incompetent. Overruled, and defendant excepts.) A. Four hundred dollars damage to me--that is, to the land. * * * Q. What was the value of the land and the timber on it as it stood before the fire went through it--the forty acres? A. Eight hundred dollars. Q. What was the value of the land as it was after the fire went through, with the timber burned? (Defendant objects as not laying a proper basis for the estimation of damages. Overruled, and exception.) A. About six hundred dollars; five hundred or six hundred dollars. I consider that the damage to the land, and the sale, would be four hundred dollars. Q. On what basis do you estimate the damage? A. I looked at it in this way: I consider the timber eight hundred dollars before it was burned, and after it was burned it was not worth more than half as much. The burned timber, if I could have used it or sold it, it would have been worth a little something to me, but it stood there perfectly worthless. Some of it stands there now. Some for post timber, and some cannot be used for that. That is why I make the distinction between what the timber was worth and what I could really get out of it, and putting it to use.” (The defendant moved to strike out all of this witness' testimony relating to his damage, because it is an improper and false basis on which the estimation is made. Overruled, and exception.)

Mr. Healey, a witness for the plaintiff, after stating that he was acquainted with the value of timber land in Seward county, was interrogated and answered as follows:

Question. Have you been on the land? Answer. Yes, sir. Q. When did you see the land? A. I think some time in the latter part of May or forepart of June, 1880. Q. What was your object in going to the land? A. It was to see how much damage that land with others had sustained by reason of the fire across it. Q. You examined, did you, and found out the damage? A. Yes, sir. Q. State what that damage was. (Defendant objects, as being incompetent. Overruled, and defendant excepts.) Q. State what the damage was in your judgment. (...

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