City of Omaha v. Kramer

• Decision Date: 04 January 1889
• Citation: 25 Neb. 489,41 N.W. 295
• Parties: CITY OF OMAHA v. KRAMER.
• Court: Nebraska Supreme Court

25 Neb. 489

41 N.W. 295

CITY OF OMAHA

v.KRAMER.

Supreme Court of Nebraska.

Jan. 4, 1889.

Syllabus by the Court.

1. A witness, called to testify to the damages to certain private property from the location and construction of a public improvement near it, may state what the property was worth immediately before the location and construction of the improvement, and immediately afterwards,--in other words, what the property was worth without the improvement, and what it is worth with it, not considering general benefits,--but cannot be permitted to state the amount of damages thereby sustained by the land-owner, as that is a deduction to be made by the jury from the evidence.¹

2. The words “or damaged” in section 21, art. 1, of the constitution, include all damages arising from the exercise of the right of eminent domain, which cause a diminution in the value of private property.

Error to district court, Douglas county; HOPEWELL, Judge.John L. Webster, for plaintiff in error.

Warren Switzler, for defendant in error.

MAXWELL, J.

This is an appeal from the award of damages allowed the defendant in error, caused by the construction of the viaduct across the railway tracks on Eleventh street, in the city of Omaha. On the trial of the cause the jury returned a verdict in his favor for the sum of $2,000. The city assigns a number of errors in this court. Those which are deemed material will be noticed in their order.

1. That the judgment is not sustained by sufficient evidence. The property in controversy is situated on the north-west corner of Eleventh and Jones streets, in Omaha, and fronts on each of said streets 66 feet. An examination of the testimony shows that witnesses called by Mr. Kramer were asked questions in this form to show the amount of damages sustained: “In your opinion, what was the damage to that property, if any thing, by the construction of this viaduct?” The witnesses then, over the objection of the city attorney, were permitted to state the amount of damages to which, in their opinion, the defendant in error was entitled. In this we think the court errcd. In Railroad Co. v. Arnold, 13 Neb. 485, 14 N. W. Rep, 478, it was held that a witness familiar with the value of a particular piece of land across which a railroad was built might be permitted to testify to the value of such tract immediately before the location of such road, and to the value thereof immediately afterwards, not taking into consideration general benefits. This rule seems to be the proper one, under which witnesses will state facts as to the relative value of the property, and the duty will then devolve upon the jury of deducing from the testimony the amount of damage. Under this rule, the basis upon which each witness makes his computation is before the jury, who may thus compare the different valuations, and also consider the weight to be given to the testimony of each witness, whereas, if the witness swears to a conclusion,--the amount of damages,--the basis upon which he makes his estimate will be wanting. We therefore adhere to the rule heretofore adopted as best calculated to elicit the facts and do justice between parties.

2. As there must be a new trial, we will not discuss the instructions at length, but instead thereof will state the general rule governing the recovery of damages. The attorney for the city contends that what are termed “consequential damages” cannot be recovered, as they are not within the language of the constitution; and the case of Railroad Co. v. Marchant, 13 Atl. Rep. 690, is cited to sustain that position. In that case the plaintiff below was the owner of property on the north side of Filbert street, in the city of Philadelphia, and brought an action against the railroad company to recover damages for injury to his property on said street caused by the operation of its elevated railroad. The latter is constructed on land owned by the corporation, and the entire width of Filbert street intervenes between the railroad and the complainant's house. He complains of the noise, dust, smoke, and cinders, and the constant jar caused by passing trains, the effect of which is to depreciate the market value of the property. In the court below the complainant recovered judgment. The constitution of Pennsylvania contains the following provision: “Municipal and other corporations and individuals, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury, or destruction.” A majority of the court, by PAXSON, J., concedes that the diminution of value of the complainant's property, by reason of the elevated railway spoken of, is established, but...