Dietrichs v. Lincoln & Nw. R. Co.

• Court: Nebraska Supreme Court
• Writing for the Court: COBB
• Citation: Dietrichs v. Lincoln & Nw. R. Co., 12 Neb. 225, 10 N.W. 718 (Neb. 1881)
• Decision Date: 08 December 1881
• Parties: DIETRICHS v. LINCOLN & NORTHWESTERN R. CO.

12 Neb. 225

10 N.W. 718

DIETRICHS

v.LINCOLN & NORTHWESTERN R. CO.

Supreme Court of Nebraska.

Filed December 8, 1881.

Error from Platte county.

W. S. Geer, for plaintiff.

Whitmoyer, Gerrard & Post, for defendant.

COBB, J.

This cause was brought to the court below on appeal by the Lincoln & Northwestern Railroad Company from the award of commissioners appointed on the application of said railroad company to appraise the value of the two lots and the improvements thereon of William Dietrichs, in the city of Columbus, Platte county, taken by said railroad company for the use of its railroad. The issue tried by the district court was a plain and simple one. As agreed by stipulation, it was as follows: “What was the market value of lots 1 and 2, in block 75, in the city of Columbus, Platte county, including the buildings and fixtures thereon, on the thirtieth day of March, 1880.”

On the trial the said William Dietrichs was sworn as a witness in his own behalf. Upon his direct examination he testified that he was acquainted with the market value of the property in question on the thirtieth day of March, 1880, and that the market value thereof at that time was $600; that the market value of the buildings, etc., at that time was the sum of $400, and the market value of the land was $200. Thereupon his direct examination closed, and the counsel for the railroad company entered upon the cross-examination of the said William Dietrichs, and asked him the following question, to-wit: Question. What did you pay for those lots? The counsel for the said William Dietrichs objected to the question as incompetent and immaterial. The court overruled the objection, and decided that the testimony hereby sought to be introduced was competent and material to fix the value of the property in question, which ruling was duly excepted to by the said William Dietrichs, whereupon the witness answered that he did not remember. Thereupon counsel for the said railroad company put the following question to the witness: “ Question. You bought them at administrator's sale?” Witness answered, “I think so.” Thereupon the counsel for the railroad company, to refresh the recollection of the witness, produced certain records, being court journal A, of Platte county district court, at page 407, being record of administration sale had and made on the tenth day of April, 1877, in the estate of Alexander B. Malcom, and read to said witness, in the presence of the court and jury, from said record as follows: “In the matter of the estate of Alexander B. Malcom, of Pottawattamie county, lot 1, of block 75, fractional, was sold to William Dietrichs for 75 cents,” and then asked of this witness: “Now state what you paid for those lots.” The said William Dietrichs, by his counsel, objected to the question, and the reference by said counsel to the said record, as incompetent and irrelevant. The court overruled the objection, which was duly excepted to, and thereupon witness answered in substance that the property in question was bought by him about that time at administrator's sale, and that it was the only property ever purchased by him in that block, and that when the record says that was the price paid, it must be so.

The court instructed the jury, among other things, as follows: “In determiningthe value of the lots in question, you are at liberty to take into consideration the price paid by defendant for them, together with all other evidence given in the case.” The jury found the value of the property to be $450, whereupon the court, after overruling the motion of the said William Dietrichs for a new trial, rendered judgment in his favor, and against the said Lincoln & Northwestern Railroad Company, for the sum of $450. The court also adjudged that the court and clerk's fees be paid by the said William Dietrichs, and that each of the said parties otherwise pay their own costs. In this court error is claimed by both parties. No other species of property has so rapidly appreciated in value within the past few years as the more eligibly located lots in our larger railroad towns and cities. The price at which such lots were sold but a few years ago would not furnish the slightest evidence of their market value now.

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