Dietricks v. Lincoln & Northwestern R. Co.
| Decision Date | 12 October 1882 |
| Citation | 13 N.W. 624,13 Neb. 361 |
| Parties | DORA DEITRICHS, APPELLANT, v. THE LINCOLN & NORTHWESTERN R. COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Platte county, POST, J presiding.
AFFIRMED.
McAllister Brothers, for appellant.
Right to condemn exhausted by one user. Mills on Eminent Domain sec. 58. Brooklyn Central R. R. v. Brooklyn City R R., 32 Barb. 358. Hudson & Delaware Canal Co. v. N. Y. & Erie R. R., 9 Paige Ch., 322. Moorhead v. Little Miama R. R., 17 Ohio 340. Atkinson v. Marietta & Cincinnati R. R., 15 Ohio St. 21. Evidence of William Dietrichs should have been admitted. 1 Greenleaf on Evidence, sec. 99. 1 Wharton Evidence, secs. 172, 173. Before a corporation can condemn private property they are required to prove their existence and right to exist. Abbot's Trial Evidence, p. 19, sec. 3. This company had not complied with the law.
A. M. Post, for appellee.
This action was commenced in the district court for Platte county to enjoin the condemnation of a lot in the city of Columbus, belonging to the plaintiff, by the defendant for railroad purposes.
In the court below the case was sent to a referee for trial, who reported his findings of fact and conclusions of law together with the evidence submitted to him. In accordance with these findings, the action was dismissed for want of equity. The several questions presented for our determination were raised on a motion for a new trial, and we will consider them in the order in which they were there stated.
It is claimed, first, that the referee erred in excluding certain testimony offered by the plaintiff to show that the lot in question was not needed for the purposes of the defendant company. The witness whose opinion was asked as to the needs of the company in this respect was the husband of the plaintiff. The proposed testimony was rightly excluded for the reason that the witness was not shown to be qualified to give an intelligent opinion upon that subject. There is nothing in the bill of exceptions to indicate what his pursuits had been or then were, and it certainly could not be presumed that he was a proficient in the matter of the construction or the necessities of railroads.
It is also claimed that the referee erred in not permitting the same witness to answer a question put to him as to the time when the road, side tracks, depot buildings, etc., at Columbus, were finished. The testimony thus sought was pertinent to, and was probably offered in support of the averment in the petition that the lot in controversy was "not needed for any purpose whatever by said defendant corporation." As an admission by the company that at the time of establishing and laying out its grounds at this place the acquisition of this lot was not included in its then anticipated wants, we think this was proper testimony. But, although it may have been, and probably was admissible, still, in view of the fact that under a more favorable ruling of the referee the fact thus sought for was fully brought out from this witness in his further examination, the error was without prejudice, and is not a good ground for reversing the judgment. On this point the record shows that, in answer to the second succeeding question, this witness said that "it was about three months" after the completion of the tracks, depot, and other buildings before proceedings for the condemnation of this lot were commenced. And besides, it was conceded on the part of the company that in the first location of its grounds the plaintiff's lot was not included.
Complaint is also made that the referee would not permit the plaintiff to show by this witness that there had been no change made in the location of the tracks or buildings of the company within the city since they were first placed. Conceding this fact to have been material to the plaintiff's case, still the ruling complained of was entirely harmless, for the reason that it was clearly established by the cross examination of A. M. Post, one of the defendant's witnesses, that no change in any of these particulars had been made.
It is also urged that certain testimony given by the witness Post as to what was done and said by A. E. Touzalin, the general manager of the company, in directing the location of the tracks and depot grounds, and as to the necessity for taking this lot, ought to have been excluded. Much of this testimony was admitted without objection; but even that which was not was clearly admissible under the pleadings, especially in view of the charge made in the petition that the proceedings in condemnation were not directed by any competent authority but by persons whose only relation to the company was merely that of attorneys at law. It may be said further of this testimony that it tended strongly to show good faith on the part of the company in desiring to acquire this lot, which, together with a total...
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