Burlington & M. R. R. Co. v. White

• Citation: 28 Neb. 166,44 N.W. 95
• Parties: BURLINGTON & M. R. R. CO. v. WHITE.
• Decision Date: 04 December 1889
• Court: Supreme Court of Nebraska

28 Neb. 166

44 N.W. 95

BURLINGTON & M. R. R. CO.

v.WHITE.

Supreme Court of Nebraska.

Dec. 4, 1889.

Syllabus by the Court.

1. Where witnesses are shown to be familiar with the value of a particular piece of land across which a railroad has been built, they are competent to testify as to the value of such tract of land immediately before the location of the road, and to the value thereof immediately afterwards. Railroad Co. v. Arnold, 13 Neb. 485, 14 N. W. Rep. 478; Railroad Co. v. Frazier, 25 Neb. 53, 54, 40 N. W. Rep. 609.

2. Where there is a stone-quarry upon the right of way which will be destroyed by reason of the grading and road-bed, witnesses familiar with the value of such quarry may be interrogated in regard to the same, as its value is a proper element of damages for the consideration of the jury. So where a dwelling-house is situated on the right of way, and will become the property of the company condemning the land.

3. Instructions set out in the record held properly given, and those refused were not based on the evidence.

4. Where the amount of the verdict exceeds the award of the commissioners, the jury should be instructed to allow interest on the value from the time of condemnation. Railroad Co. v. Brown, 13 Neb. 318, 14 N. W. Rep. 407. Where, however, such instruction was withheld by the judge at the request of the attorneys for the railway company upon an agreement that if the verdict exceeded the award the court might add interest thereto, held that, as the verdict did exceed the award, therefore the land-owner was entitled to interest on the value as found by the jury, and that a judgment for interest on the verdict, although irregular, was error without prejudice.

Error from district court, Saunders county; POST, Judge.T. B. Wilson and Marquett & Deweese, for plaintiff in error.

Lamb, Ricketts & Wilson, for defendant in error.

MAXWELL, J.

The defendant in error, in the year 1886, was possessed of a quarter section of land, a short distance below Ashland, and the plaintiff in error, desiring to change the line of its road, located the same on the south side of Salt creek, over the land in question, and caused the necessary right of way to be condemned, the award of damages to Mrs. White being $975. She then appealed the cause to the district court, where a verdict was returned in her favor for $2,300. The court thereupon added interest at 7 per cent. on the amount of the verdict from the date of condemnation, and rendered judgment for $2,689.08. The railway company brings the cause into this court by petition in error.

The first error assigned is in permitting witnesses to testify to the amount of damages sustained by the land-owner; that is, the value of the land actually taken, and the diminution in value of the residue; and the case of Railroad Co. v. Whalen, 11 Neb. 587, 10 N. W. Rep. 491, is cited to show that a different rule prevails in this state. The rule applied in the case cited was borrowed from another state, and was found to be liable to cause great injustice, as, no matter how great an error the jury might commit, it was impossible to review the verdict upon the facts. The rule, therefore, was changed to guard, protect, and enforce the rights of both parties. Railroad Co. v. Arnold, 13 Neb. 487, 14 N. W. Rep. 478;City of Omaha v. Kramer, 25 Neb. 489, 41 N. W. Rep. 295; Railroad Co. v. Frazier, 25 Neb. 54, 40 N. W. Rep. 609. Some of the commissioners were called as witnesses by the plaintiff in error, and testified, substantially, that the damages sustained by the defendant in error, in their opinion, were about $1,000. They were cross-examined as to the mode of estimating damages, and what matters were taken into consideration by them. This was proper, in order to place before the jury the basis upon which their estimates were made. The testimony tends to show that there was a stone-quarry on the right of way taken, which, in consequence of the building of the road, could not be worked. It is objected that proof on this point was permitted, as it was not a proper element of damage; also that there was a dwelling-house taken, which was shown to be worth a certain sum,--the witnesses, however, not agreeing on the value. These, certainly, were proper elements of damage. The quarry was a source of revenue, and had a value as a quarry, and the dwelling would be taken at what it was found to be worth. Forney v. Railroad Co., 23 Neb. 469, 36 N. W. Rep. 806. The land-owner cannot prevent the appropriation of his land, when needed for right of way, but the law guards his rights by requiring full compensation to be made for the property taken. A full inquiry was necessary, therefore, to enable the jury to arrive at the facts in the case. In a number of cases the court has held that the question of the amount of damages in a given case was one for the consideration of the jury, and that the verdict would not beset aside unless it was clearly wrong. Suppose certain witnesses, called by the landowners, should fix the damages in the aggregate at $15 per acre for the land not taken, while those called by the corporation should place the amount at but $5 per acre, a jury of the county, presumably familiar with the values therein, would be enabled to give credit to such witnesses as in their opinion made the most accurate estimate. The cases which have come before this court show that the lower or medium estimates are more frequently accepted than the higher, no doubt because the juries regard them as the more accurate. The evidence fully sustains the verdict, and there is no material error in the introduction of evidence.

The court gave the following instructions: “(1) This is an appeal from the award of damages sustained by plaintiff by reason of the location and construction of defendant's railroad over and across the east half of the south-west quarter, and the south-west quarter of the south-west quarter, of section 31, in township 13, of range 10, of this county. If you find from the evidence that the plaintiff was, at the date of the location and construction of defendant's said railroad, the owner of the whole of said quarter section, then you are instructed that plaintiff would be entitled to recover in this action whatever damages you may find from the evidence she sustained upon the whole quarter section, if any, notwithstanding only part thereof was described in the condemnation proceedings. (2) You are instructed that, in estimating plaintiff's damages, you will take into consideration all such injuries to the property as necessarily result from the legal and proper construction of defendant's road in the manner shown by the evidence, and also that resulting from its lawful and proper and perpetual use in the future. (3) You will first estimate the value of the strip of land actually taken and occupied by the defendant, and to this sum you will add the damages, if any, which you find from the evidence was sustained by the remainder of the plaintiff's said farm. (4) If you find from the evidence that, upon the strip of land as...