Atchison & N. R. Co. v. Boerner

• Decision Date: 18 June 1895
• Citation: 45 Neb. 453,63 N.W. 787
• Parties: ATCHISON & N. R. CO. v. BOERNER.
• Court: Nebraska Supreme Court

45 Neb. 453

63 N.W. 787

ATCHISON & N. R. CO.

v.BOERNER.

Supreme Court of Nebraska.

June 18, 1895.

Syllabus by the Court.

1. Railroad Co. v. Boerner, 51 N. W. 842 34 Neb. 240, reaffirmed.

2. Instructions examined, and held not erroneous.

Error to district court, Richardson county; Bush, Judge.

Action by August Boerner against the Atchison & Nebraska Railroad Company for damages to realty. Plaintiff had judgment, and defendant brings error. Affirmed.E. W. Thomas, T. M. Marquett, and J. W. Deweese, for plaintiff in error.

F. Martin, John Gagnon, and C. Gillespie, for defendant in error.

IRVINE, C.

This case was before the court in 1892, when it was reversed, and remanded for a new trial. Railroad Co. v. Boerner, 34 Neb. 240, 51 N. W. 842. The facts were stated in the former opinion. After the former mandate another trial was had, resulting in a verdict and judgment for Boerner, and the railroad company brings the case here for review. The principal question argued is the correctness of the former decision, and counsel for the railroad company very frankly state that the case would not be again brought here, were it not for their conviction that the former decision was wrong. The court on the former hearing determined that a judgment on appeal from an award of damages in condemnation proceedings is conclusive as to questions actually litigated therein, and as to all matters necessarily within the issues, although not formerly litigated, but that the condemnation proceedings, and the judgment on appeal therefrom, while they involve all questions of damages caused by the appropriation of that portion of land which was appropriated, and all questions in regard to damages incidentally caused to the remainder of the tract by reason of the appropriation, and the proper construction and maintenance and operation of the railroad on the land appropriated, do not involve damages caused to the land by reason of interference with an easement in a public highway by the railway's crossing such highway at some distance from the land. We are satisfied with the conclusions reached on the former hearing, and, while we have examined the argument of the railroad company on this point with interest, we do not think that we should depart from the rule already announced in the case. It is not necessary at this time to restate the reasons therefor. We pass on, therefore, to a consideration of the new question presented on the second trial.

It is assigned as error that the court erred in permitting the plaintiff to prove the value of the property immediately before the construction of the railroad, and its value immediately after. This assignment is too general to indicate the precise rulings complained of. Several witnesses testified to the value of the property before the railroad was constructed. All this testimony was objected to, but we think it was clearly admissible, as one step in proving the damages. Several questions were asked, in different forms, by which it was...