Blakely v. Chi., K. & N. R. Co.

• Court: Nebraska Supreme Court
• Writing for the Court: REESE
• Citation: Blakely v. Chi., K. & N. R. Co., 25 Neb. 207, 40 N.W. 956 (Neb. 1888)
• Decision Date: 13 December 1888
• Parties: BLAKELY v. CHICAGO, K. & N. R. CO.

25 Neb. 207

40 N.W. 956

BLAKELY

v.CHICAGO, K. & N. R. CO.

Supreme Court of Nebraska.

December 13, 1888.

Syllabus by the Court.

Where persons are shown to be familiar with the value of a particular piece of land across which a railroad has been built, they may be permitted as witnesses to testify as to the value of such tract immediately before the location of the road, and to the value thereof immediately afterwards.

In such case it is competent for the witness, in estimating the value of such real estate after the location of the road, to take into consideration all elements caused by the construction of the road which would tend to diminish the value of the property.¹

Error to district court, Thayer county; MORRIS, Judge.

Action by Maggie Blakely against the Chicago, Kansas & Nebraska Railroad Company to recover for damages to real estate, resulting from the construction of defendant's road. From the judgment of the district court plaintiff appeals.Griggs & Rinaker and C. L. Richards, for plaintiff in error.

Manford Savage, for defendant in error.

REESE, C. J.

This was an appeal to the district court of Thayer county from an award of damages to real estate, resulting from the construction of the railroad of defendant in error over and across such real estate. The questions presented by plaintiff in error will be considered in their order.

During the trial, Nathan Blakeley was sworn as a witness on the part of the plaintiff in error, and was asked the following questions: “ Question. For what purpose was this land adapted, prior to the taking of it by the railroad? Answer. For agricultural purposes. It was not under cultivation. Q. It could have been farmed, could it not, throughout? A Yes, sir. Q. What do you consider the fair market value of this tract of land was, September 4, 1886, at the time of its appropriation by the railroad? A. From $1,000 to $1,200. Q. What was the fair market value of this tract of land, or that remaining after the railroad right of way was taken, just after its appropriation by the railroad?” To which question the counsel for defendant objected, as immaterial, incompetent, and irrelevant, which objection was sustained by the court; to which ruling the plaintiff then and there duly excepted. “ Q. You are acquainted with the value of real estate, are you not, both before and after the taking of the land for right of way purposes, and know the damage caused by reason of the taking of the land for right of way purposes?” To which counsel for the defendant objected as immaterial, incompetent, and irrelevant, which objection was sustained by the court; to which ruling of the court plaintiff then and there excepted. Counsel for plaintiff offered to prove that this witness was competent to testify to the value of the real estate before and after the taking of the same for railroad purposes, and is competent in this case, by reason of his experience in such matters, to state the fair market value of this tract of land at the time of the filing of the petition, September 4th, and its fair market value just after the taking by the railroad company of the tract remaining unappropriated by the railroad; to which the counsel for the defendant objected as immaterial, incompetent, and irrelevant, which objection was sustained by the court, and to which ruling the plaintiff then and there duly excepted.

James Dinsmore was called as a witness for plaintiff in error, and testified that the fair market value of the 40-acre tract through which the right of way had been taken, just before its appropriation by the railroad company was about $20 per acre. He was then asked: “ Question. What was the fair market value of the residue of the tract after the railroad had appropriated three and eighty-one hundredths acres for its right of way?” Whereupon counsel for defendant objected to the question, for the reason that the question was immaterial, incompetent, and irrelevant, which objection is sustained by the court; to which ruling of the court plaintiff then and there excepted.

The following instruction to the jury was asked by plaintiff, which was refused by the court, and to which exception was taken. “The jury are instructed that in this case the plaintiff is entitled to recover (1) the fair market value of the land actually taken, at the time the same was appropriated for defendant's right of way. (2) The damages, if any, to the remainder of the tract not taken, accruing by reason of such taking. (3) In case they award to the plaintiff a sum exceeding $150, then they should allow him interest on the whole sum so now awarded him from the 4th day of September, 1886, at the rate of seven per cent. per annum; and the jury are further instructed that the damage done to that part of plaintiff's land which is not taken is to be determined by ascertaining from the evidence the fair market value of such...