Chi., R. I. & P. R. Co. v. Griffith

• Decision Date: 05 April 1895
• Citation: 44 Neb. 690,62 N.W. 868
• Parties: CHICAGO, R. I. & P. R. CO. v. GRIFFITH ET AL.
• Court: Nebraska Supreme Court

44 Neb. 690

62 N.W. 868

CHICAGO, R. I. & P. R. CO.

v.GRIFFITH ET AL.

Supreme Court of Nebraska.

April 5, 1895.

Syllabus by the Court.

1. While it is not competent to show the price at which other property has been sold, for the purpose of proving the value of that taken for railroad purposes, yet if, on cross-examination of witnesses for the adverse party, the railroad company adopts that line of inquiry, error will not be presumed from a re-examination confined to such line followed on cross-examination.

2. Error cannot be predicated upon the mere fact that witnesses under examination as to the value of several lots in the same immediate neighborhood, in arriving at their value, estimated that of one class, then, having considered wherein that class differed from another, qualified their estimates of the value of the latter class by taking into consideration the cost of removing such difference when such removal was by such witnesses deemed practicable and advisable.

3. An affidavit in support of a motion for a new trial, to be available on error, must be embodied in a bill of exceptions, and alleged errors not excepted to will not be considered.

Error to district court, Lancaster county; Strode, Judge.

Condemnation proceedings by the Chicago, Rock Island & Pacific Railroad Company against A. K. Griffith and others. From the judgment rendered, plaintiff brings error. Affirmed.L. W. Billingsley and R. J. Greene, for plaintiff in error.

Lamb, Adams & Scott, for defendants in error.

RYAN, C.

Error proceedings in this case are prosecuted to reverse a judgment of the district court of Lancaster county. Originally, on the application of the plaintiff in error, there was an award of damages caused by taking certain lots of the defendants in error, situate in Saulsbury addition to the city of Lincoln. This award was unsatisfactory to the defendants in error, and they appealed to the aforesaid district court, wherein, upon a trial had, the award was considerably increased. Such errors only as are deemed essential will receive consideration, and these as briefly as possible.

A. K. Griffith, one of the defendants in error, in his testimony, described the property in Saulsbury addition which had been appropriated by the railroad company, as well as its location, and gave his estimate of its value before its appropriation. This was limited to such lots as were owned by the defendants in error. On cross-examination this witness testified as follows: “Q. Before the railroad was projected through there, and before its coming had any influence upon the market value of property there, do you know of any sales being made in that neighborhood? A. Oh, yes. Q. Where? A. On 17th street there. Q. North of Vine? A. North of Vine; yes, sir. Q. How far from your property? A. About 100 feet,--something over 100 feet. Q. How far did these lay from Vine street? A. I don't know exactly which lots it was. I knew of a couple of lots selling in there, probably 300 to 400 feet from Vine. Q. Who sold them? A. Tom Beach sold one, and I forget who else. Q. What month did Tom Beach sell? A. I don't know the month. Q. Will you swear it was in 1892? A. No; I would not. Q. Will you swear it was in 1891? A. I feel pretty sure, but I wouldn't swear. Q. What was the size of that lot? A. Those lots were 50x175 feet. Q. Was the lot you speak of Beach selling a vacant lot? A. Yes, sir. Q. What did he get? A. I don't know exactly; about a thousand dollars, I think. Q. That was 50x175? A. I would not say positively. I think it was, though. Q. That is the size you gave? A. That is the size I think it was.” On redirect examination there was answered the following question, under objections as indicated, to wit: “Q. In answer to some questions of Mr. Wilson's, Mr. Griffith, you said you knew of some other lots selling over there,--Beach's lots. What did they sell for, if you know? (Objected to as incompetent, irrelevant, and immaterial, and the evidence now shows that the Beach lots were purchased by the defendant for the purpose of the location of their railroad. Overruled. Exception.) A. The lowest price any lot sold for on that alley (25x95 feet they were) was $300,--from that up.”

When this question and answer were first considered, it appeared to us that the court erred in its ruling, for it was immaterial what had been paid for other lots, and evidence to that effect seemed incompetent. The fact that this testimony was elicited on re-examination was not alone sufficient to render it competent, for it was directed to the establishment of an essential fact, upon the existence of which plaintiffs' right of recovery depended; that is, the value of the land of plaintiffs which had been appropriated to the use of the railroad company. What was the market value of the particular property taken from defendants in error was an important question in this case. Blakeley v. Railway Co., 25 Neb. 212, 40 N. W. 956;Railway Co. v. McDermott, 25 Neb. 715, 41 N. W. 648. The question asked and answered had reference to the value of other property,--a consideration entirely foreign to that just stated. A more critical analysis of the cross-examination of Mr. Griffith, however, disclosed the fact that therein he had been asked what Mr. Beach got for a lot, and he had answered, “One thousand dollars.” It is possible that this use of the word “lot” may have been with reference to a tract, as distinguished from a technically designated city lot. On cross-examination the price received by Mr. Beach was described as $1,000. On re-examination the lowest price of any lot sold was given as $300. “They were from that on up,” said the witness. Thus the railroad company had shown a valuation of $1,000 on a single lot, while by the re-examination of Mr. Griffith no sale had been shown for a figure given in excess of $300. If, as has been already suggested, this $1,000 for a vacant lot referred to a tract (perhaps greater in area than a city lot), we are not at all justified thereby in assuming that the admission of the evidence noted on re-examination was prejudicial to the railroad company. The existence of such prejudice is rendered still more problematical by a consideration of the cross-examination of Mr. Griffith, which followed his re-examination above noted, which cross-examination was as follows: “Q. You say the lowest of them was sold for $300? A. That is the lowest price I heard. Q. Why didn't you state that all that sold above $300 had improvements on? A. All that sold above...