Atchison & Nebraska Railroad Company v. Boerner
| Citation | 63 N.W. 787,45 Neb. 453 |
| Decision Date | 18 June 1895 |
| Docket Number | 6121 |
| Parties | ATCHISON & NEBRASKA RAILROAD COMPANY v. AUGUST BOERNER |
| Court | Nebraska Supreme Court |
ERROR from the district court of Richardson county. Tried below before BUSH, J.
AFFIRMED.
T. M Marquett, J. W. Deweese, and E. W. Thomas, for plaintiff in error.
F Martin, John Gagnon, and C. Gillespie, contra.
This case was before the court in 1892, when it was reversed and remanded for a new trial. (Atchison & N. R. 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 formally 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 damage 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 questions 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 ruling 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 damage. Several questions were asked in...
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