Chi., B. & Q. R. Co. v. Hull
| Decision Date | 07 November 1888 |
| Court | Nebraska Supreme Court |
| Parties | CHICAGO, B. & Q. R. CO. v. HULL. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A previous ruling by the appellate court upon a point distinctly made, may be only authority in other cases, to be followed or affirmed, or to be modified or overruled, according to its intrinsic merits; but in the case in which it is made it is more than authority; it is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves. Phelan v. San Francisco, 20 Cal. 45, quoted in Wells, Res. Adj. § 613; Hiatt v. Brooks, 17 Neb. 33, 22 N. W. Rep. 73;O'Donohue v. Hendrix, 17 Neb. 287, 22 N. W. Rep. 548;Leighton v. Stuart, 19 Neb. 546, 26 N. W. Rep. 198;Nelson v. Bevins, 19 Neb. 715, 28 N. W. Rep. 331,Lane v. Starkey, 20 Neb. 586, 31 N. W. Rep. 238;Mynning v. Railroad Co., (Mich.) 35 N. W Rep. 811.
In a trial where the defense consisted of proceedings under the provisions of the statute for the condemnation of certain real estate to the use of a railroad company, evidence was offered tending to prove that said real estate was necessary to said company for the purposes of its business, which evidence was excluded; evidence tending to prove the condemnation of the real estate by the railroad company was offered and received. It having been held in a former opinion of this court, in the same case, (32 N. W. Rep. 162,) that said condemnation proceedings as proved were ineffectual on account of defects in the notices, and other material matters of procedure, without considering and before arriving at the point as to whether the real estate in question was necessary to the railroad company or not, held, that the fact of said real estate being necessary to the said company, as effecting its power to condemn, is ancillary to that of actual legal condemnation, and that, actual legal condemnation not being proved, the exclusion of the evidence under consideration was not reversible error.
Error to district court, Lancaster county; CHAPMAN, Judge.
This is a second appeal in an action of ejectment by Charles J. Hull against the Chicago, Burlington & Quincy Railroad Company, appellant, for possession of certain lots in the city of Lincoln. For opinion in former appeal, see 32 N. W. Rep. 162.Marquett & Deweese and O. P. Mason, for plaintiff in error.
Lamb, Ricketts & Wilson, for defendant in error.
This cause was before this court at the January, 1887, term. By reference to the reported case, 21 Neb. 371et seq., 32 N. W. Rep. 162, it will be seen that the action was brought in the court below by the plaintiff against the defendant in the nature of ejectment for the possession of lots 14, 15, 16, and 17, in block 70, in the city of Lincoln; that at the trial to the district court there was a finding and judgment in favor of the plaintiff, in so far as lots 14 and 17 were concerned, and in favor of the defendants as to lots 15 and 16. In this court, so much of the judgment as was in favor of the plaintiff was affirmed, and so much of it as was in favor of the defendants was reversed, and the cause remanded to the district court for further proceedings. There was a new, or second, trial in that court, to the court, a jury being waived by the respective parties, with findings and judgment for the plaintiff. The defendant, the Chicago, Burlington & Quincy Railroad Company, having made and submitted its motion for a new trial, which motion was overruled, again brings the cause to this court on error, and assigns the following errors: (1) The findings and judgment of the court are not sustained by sufficient evidence. (2) The judgment is contrary to law. (3) For error of law occurring at the trial, etc. (4) The judgment in this cause should have been in favor of the plaintiff herein, instead of the defendant. (5) The judgment of the court is against the evidence and the law of the case. The court should have found the title to said lots and the right of possession in the plaintiff herein, instead of the defendants herein. (6) The court, in overruling objections made to evidence offered by the defendant herein, and admitting the same in testimony, erred. (7) The court erred in sustaining objections made by the defendant herein to evidence offered by the plaintiff herein, and excluding the same from the testimony. (8) Under the law applicable to the case, the defendant could not maintain ejectment in the recovery of possession of said lots. (9) The law of the case is in favor of the plaintiff herein, and, under the law and the evidence, the judgment should have been for the plaintiff herein. (10) The court erred in overruling the motion of the plaintiff herein for a new trial.
The first point presented and argued by plaintiff in error in the brief is that arising upon its objection to the remedy pursued in the action by the defendant in error in the court below. In other words, that the plaintiff below was limited to the statutory remedy given the owners of land for injuries sustained by the taking of the same by railways, and that an action in the nature of ejectment would not lie for such taking. His point was distinctly presented in this case, when it was first before this court, and distinctly decided. Under the well-known rule of stare decisis that decision remains the law of this case. See Hiatt v. Brooks, 17 Neb. 33, 22 N. W. Rep. 73, cited by counsel for defen...
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