Beckman v. Lincoln & Northwestern Railroad Company

• Decision Date: 22 October 1909
• Docket Number: 15,779
• Citation: 122 N.W. 994,85 Neb. 228
• Parties: FRED BECKMAN, APPELLEE, v. LINCOLN & NORTHWESTERN RAILROAD COMPANY, APPELLANT
• Court: Nebraska Supreme Court

122 N.W. 994

85 Neb. 228

FRED BECKMAN, APPELLEE, v. LINCOLN & NORTHWESTERN RAILROAD COMPANY, APPELLANT

No. 15,779

Supreme Court of Nebraska

October 22, 1909

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.

AFFIRMED.

James E. Kelby, Byron Clark and F. E. Bishop, for appellant.

Field Ricketts & Ricketts, contra.

OPINION

REESE, C. J.

This is an appeal from the judgment of the district court for Lancaster county in a proceeding by defendant to condemn a portion of the land of plaintiff for right of way for the railroad track of the defendant. The principal question involved is the amount of damages plaintiff is entitled to receive. The verdict of the jury was for more than that appraised by the commission appointed by the county court. Preliminary to this, however, is the contention by defendant that the district court was without authority or jurisdiction to inquire into the question of damages for the reason that the appeal was not from the judgment of the county court awarding damages, but from the order of that court in taking any action in the matter. The appeal was filed in the district court in due time. A petition was filed by plaintiff in which he contested the right of the defendant to condemn his land for right of way purposes for the reason that it was not the real party in interest, it having leased its line of road to another railroad company. The petition set out the proposed line, and contained averments of facts showing the injury to the property, with the allegation that the damages sustained would be the sum of $ 7,000, which was more than the amount awarded by the appraisers. He also instituted an action in injunction seeking to restrain the defendant from proceeding with the condemnation of a portion of his land. That suit was finally decided against the contention of plaintiff, the case being reported in 79 Neb. 89. Plaintiff, over the objections of defendant, filed his amended petition, claiming damages in the amount named in his former petition. Defendant filed its answer controverting plaintiff's right to try the question of damages, "because plaintiff has not appealed from the award of damages made by the commission in the condemnation proceedings, but filed objections to the jurisdiction in said condemnation, and in the original petition filed in this proceeding has prayed for the dismissal of said condemnation." The answer also denied that plaintiff had been damaged for the land taken in any greater sum than $ 1,400. Plaintiff replied by a general denial.

It is claimed by defendant that, plaintiff having elected to appeal on the question of jurisdiction, he is bound by that proceeding, and should not be permitted to shift his appeal to one involving the question of damages. In other words, he is bound by his election. We cannot agree with defendant in this contention. Plaintiff's first petition not only questioned the jurisdiction of the court, but specifically raised the question of damages. But, had he not done so, we would still have to hold that the appeal transferred the whole case to the district court, and the fact that plaintiff questioned its jurisdiction could not have the effect of depriving him of the right to question the amount of damages awarded him, his attack upon the jurisdiction failing. In so far as the subject of damages was concerned, no new pleadings were necessary. Fremont, E. & M. V. R. Co. v. Meeker, 28 Neb. 94, 44 N.W. 79. The jurisdiction of the court having been sustained, the cause was pending for trial on its merits. The rule that a party cannot shift his contention to the prejudice of another has no application here. There has been no change in plaintiff's attitude as to the question of damages, or on any fact upon which his claim therefor was based.

A number of questions propounded to plaintiff and his witnesses were objected to, the objections overruled, and to which defendant excepted. To discuss them separately would extend this opinion to an unwarrantable length. The legal propositions presented will be noticed. It was conceded that the land taken comprised 7 acres in a strip 150 feet wide through plaintiff's quarter section, leaving 12 acres on one side of the track and 141 on the other, 12 acres having been previously taken for right of way for another track. Plaintiff sought to prove the value of the 7 acres actually taken and the diminution of the value of the remaining land the whole being a farm in one compact body. To this defendant objected. Its contention is that the valuation of the 7 acres should be based upon the average acreage value of the farm. There was evidence that the 7 acres was of the best portion of the land, and hence the most valuable. In addition to proving the value of the land actually taken, the court permitted evidence tending to show the value of the whole 148 acres immediately before the condemnation proceedings and after. This ruling was afterwards corrected, and the witness then testified as to the value of the 141 acres before taking, excluding the 7 acres taken. However, this did not materially change the situation, as the testimony of the witness relating to values was practically the same. He had estimated the value of the whole 148 acres at $ 75 to $ 80 an acre before the location of the road, and in his subsequent testimony stated that he thought the 141 acres was worth $ 80 an acre before the construction of the road. To the mind of the writer the contention of defendant is a little...