16 N.W. 747 (Neb. 1883), Burlington & Missouri River Railroad Co. v. Beebe
|Citation:||16 N.W. 747, 14 Neb. 463|
|Opinion Judge:||COBB, J.|
|Party Name:||THE BURLINGTON & MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA AND THE LINCOLN & NORTHWESTERN RAILROAD COMPANY, PLAINTIFFS IN ERROR, v. WINFIELD S. BEEBE, DEFENDANT IN ERROR|
|Attorney:||Marquett & Deweese and Norval Brothers, for plaintiffs in error. D. C. McKillip and Harwood & Ames, for defendant in error.|
|Judge Panel:||COBB, J. LAKE, CH. J., concurs. MAXWELL, J., dissenting. LAKE, CH. J., concurs. MAXWELL MAXWELL, J., dissenting.|
|Case Date:||October 09, 1883|
|Court:||Supreme Court of Nebraska|
ERROR to the district court for Seward county. Tried below before GEORGE W. POST, J.
REVERSED AND REMANDED.
[14 Neb. 464]
The first point raised by the plaintiffs in error in their 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 defendants, is of 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 defendants. 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 obligation 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:
Q. Do you know anything about this case?
[14 Neb. 465] A. 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.
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 forty 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.
[14 Neb. 466] 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 a 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. Supposing that the defendants (?) offer 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.
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 the 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.
[14 Neb. 467] 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...
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