Chicago, Rock Island & Pacific Railway Company v. Buel

• Decision Date: 05 October 1898
• Docket Number: 8266
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. CHARLES BUEL
• Court: Nebraska Supreme Court

76 N.W. 571

56 Neb. 205

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. CHARLES BUEL

No. 8266

Supreme Court of Nebraska

October 5, 1898

ERROR from the district court of Lancaster county. Tried below before TIBBETS, J. Affirmed.

AFFIRMED.

L. W Billingsley and R. J. Greene, for plaintiff in error.

Charles E. Magoon, contra.

OPINION

NORVAL, J.

The Chicago, Rock Island & Pacific Railway Company instituted proceedings for the condemnation of right of way over and across the land of Charles Buel and for the assessment of his damages in the premises. The commissioners appointed by the county judge assessed the damages at $ 800 and from said award an appeal was prosecuted to the district court, where the landowner obtained a verdict and judgment in the sum of $ 1,957.50. The railway company has brought error proceeding in this court to review the record of the trial.

The first assignment argued in the brief is directed against the ninth or last instruction given by the court on its own motion, which was to the effect that if the jury ascertained that the value of the land taken for right of way purposes and the damages to the remainder of the tract, if any, determined in accordance with the previous instructions, together, exceeded the sum of $ 800,--the amount awarded by the commissioners,--interest was to be allowed at the rate of seven per cent per annum on the entire sum found by the jury to be due the plaintiff below. This instruction is in harmony with many adjudications of this court, and is opposed to none. It is well settled that where, on an appeal for an award of damages for lands taken for right of way, the damages are found to exceed the sum returned by the commissioners, the owner is entitled to interest from the date of the appropriation. (Sioux City R. Co. v. Brown, 13 Neb. 317; Berggren v. Fremont, E. & M. V. R. Co., 23 Neb. 20; Atchison & N. R. Co. v. Plantt, 24 Neb. 127, 38 N.W. 33; Burlington & M. R. R. Co. v. White, 28 Neb. 166, 44 N.W. 95.)

The gist of the argument of counsel for the railway company is that evidence was adduced as to damages occasioned by the destruction of crops, by digging a ditch, and various other items of damages, and that the instruction assailed permitted a recovery of interest on such damages from a date long anterior to the time they accrued. This is not a fair criticism of the doctrine announced by the court. The ninth paragraph of the charge, in express terms, confines the jury in the determination of the damages to the principles laid down for their guidance in the other portions of the charge, and it is a familiar rule that instructions are to be considered as a whole. The doctrine is distinctly announced in the instructions that plaintiff can recover the actual value of the land appropriated, and the depreciation in value of the portion not taken caused by the careful and proper construction and operation of defendant's road, and that no recovery could be had for loss sustained by the negligent or faulty construction or operation of the road, or by acts of defendant upon plaintiff's land outside of the right of way. So that the jury, if they were guided by the rule given to them by the court, not only did not allow improper elements of damages, such as injury to growing crops, but did not award plaintiff interest thereon for any length of time whatever.

Complaint is made of the allowance of the witness Boarman to testify that the depreciation in value of the land resulted from the embankment constructed by the defendant backing surface water on the land and destroying the crops, and that witness observed water standing on the land after the construction of the road. The record shows that Boarman was called as a witness for the landowner and testified on direct examination as to the value of the land, both before and after the appropriation. It was on cross-examination of the witness by the attorney for the defendant company that the testimony was given of which complaint is now made. A reversal cannot be had for the admission of incompetent evidence brought out by the unsuccessful party. For the same reason error cannot be predicated upon the testimony of plaintiff's witnesses Wilson and Meyers relating to the depreciation in value of the land caused by the damming-up of the water, since the testimony was elicited on cross-examination by the railway company. Moreover, the defendant could not have been prejudiced by this class of testimony, for the jury were directed by the sixth instruction as follows: "You are not, however, to consider any damages to the land not taken, if any such has been shown by the evidence to exist, occasioned by reason of the improper or negligent construction of the defendant's railway, even though such improper or negligent construction of the defendant's railway obstructs the said waterway, and throws the water back upon plaintiff's land."

It is urged that there was prejudicial error in the trial court refusing to strike out the evidence of the witness Boarman as to damages sustained by surface water and destruction of crops. His testimony having been given in response to...