Ball v. Keokuk & N.W.R. Co.

• Court: Iowa Supreme Court
• Writing for the Court: ADAMS, CH. J.
• Citation: Ball v. Keokuk & N.W.R. Co., 32 N.W. 354, 71 Iowa 306 (Iowa 1887)
• Decision Date: 11 March 1887
• Parties: BALL v. THE KEOKUK & NORTHWESTERN R'Y CO

32 N.W. 354

71 Iowa 306

BALL v. THE KEOKUK & NORTHWESTERN R'Y CO

Supreme Court of Iowa, Des Moines

March 11, 1887

Appeal from Lee. Circuit Court.

THE appeal is from proceedings instituted to ascertain the right of way damages due the plaintiff by reason of the taking of land for the defendant railway company. A sheriff's jury was called, and the damages assessed. From the assessment the defendant appealed to the circuit court, where a trial was had, and the damages were again assessed. From that assessment the defendant appeals to this court.

REVERSED.

James H. Anderson, for appellant.

D. N Sprague and Frank Hagerman, for appellee.

OPINION

ADAMS CH. J.

I. In the proceedings as instituted, and in the trial upon appeal in the circuit court, the land in question was described as in township sixty-nine, whereas the land is in township sixty-seven. After the verdict the plaintiff asked leave to amend the papers so as to describe the land as in township sixty-seven, and such amendment was allowed to be made. The defendant claims that, in allowing such amendment the court erred.

The sheriff's jury examined the land in question in township sixty-seven, and all the witnesses who testified upon the trial upon appeal testified with reference to the same land. No one was misled by the mistake in describing the township at first as township sixty-nine. The amount of damages assessed could not have been different if the mistake had not been made. After the amendment, the papers, upon their face, applied to the land intended, and every interest of the defendant was protected. We think that the amendment was allowable in furtherance of justice, and that the defendant has no good ground of complaint.

II. The defendant filed an answer in the circuit court, in which it averred that the plaintiff had another action pending for the same damages. The fact appears to be that there was another action pending at the time these proceedings were commenced, but was dismissed before the trial on appeal. Whatever may be the rule at common law, under our practice the dismissal of the former action, before the question as to its pendency comes before the court for determination, removes the bar. Rush v. Frost, 49 Iowa 183.

III. The defendant has presented a large number of questions arising upon the introduction of evidence, but it will not be necessary to consider them all. The case in some respects presents itself to us as a remarkable one. The amount of land taken by the railroad company was about eight acres. No buildings seem to have been disturbed, and yet the jury assessed the plaintiff's damages at $ 3,259.44. How much land there was in the farm does not appear from any reliable evidence. In the petition of the plaintiff to the sheriff, asking him to summon a jury to assess the damages, the land is described as embracing two tracts of forty acres each, and one tract of fifty-four and one-half acres, and one tract described as half of a quarter section. No one of the governmental subdivisions is described as fractional, and, taking the description as it stands, the amount should be presumed to be 214 1/2 acres. Yet none of the witnesses speak of it as such, and a part of them, without any tangible evidence upon the subject, assume that there was more, and estimated the damages at a certain amount per acre.

The case seems to have been tried, on the part of the plaintiff in a very loose and confused way. Some of the evidence as presented in the abstract is not intelligible. The court itself seems to have been confused by the way the plaintiff's counsel examined his witnesses. Whether the witnesses themselves had a better understanding of what was asked we do not know. Testimony was allowed in regard to an eighty-seven-acre tract, against the objection of the defendant that no such tract is described in the papers in the case. The plaintiff testified that the...