Berggren v. Fremont, E. & M. V. R. Co.

• Decision Date: 14 March 1888
• Citation: Berggren v. Fremont, E. & M. V. R. Co., 23 Neb. 620, 37 N.W. 470 (Neb. 1888)
• Parties: BERGGREN v. FREMONT, E. & M. V. R. CO.
• Court: Nebraska Supreme Court

23 Neb. 620

37 N.W. 470

BERGGREN

v.FREMONT, E. & M. V. R. CO.

Supreme Court of Nebraska.

March 14, 1888.

Syllabus by the Court.

A railway company condemned certain real estate, and deposited the amount of the award with the county judge, and afterwards took an appeal from such award to the district court. After the case had been pending in the district court for more than a year, it filed a motion to dismiss the appeal, which motion was sustained. Held, that the motion to dismiss the appeal is equivalent to an admission of the correctness of the award; and, as the company by the appeal has deprived the land-owner of the use of the money, he is entitled to interest on the award.

Where a railway company appeals from an award of damages for real estate condemned for right of way, becomes satisfied of the correctness of the award, and therefore does not desire to prosecute such appeal, the proper motion is to affirm the award, as such motion, if sustained, will carry interest and costs.

Error to district court, Saunders county; MARSHALL, Judge.

This was a condemnation case, appealed by the defendant, the Fremont, Elkhorn & Missouri Valley Railroad Company, from the county judge of Saunders county to the district court. On motion of defendant the appeal was dismissed. The plaintiff, Nels B. Berggren, denies the right of the defendant to dismiss its own appeal, and brings error to this ruling of the court.J. R. Gilkerson, for plaintiff in error.

Bell & Sornborger and J. B. Hawley, for defendant in error.

MAXWELL, J.

In February, 1886, the defendant in error instituted proceedings in the county court of Saunders county, to condemn certain lots in the city of Wahoo in said county, and, in April following, an award of damages was made, and duly filed in the office of said judge. In May following, the railway company took an appeal from said award to the district court of that county, and in May, 1887, moved to dismiss the appeal; and in June of that year the motion was sustained, and the appeal dismissed.

The question presented to this court is the right of the railway company to dismiss the appeal. Under our statute as it existed at the time of these condemnation proceedings, no bond was required of the party appealing. The court, therefore, in determining the question must consider the rights of the parties. The railway company, upon the filing of the award and depositing of the money, take possession of the land condemned. The money is...