Ehlers v. Chi., B. & Q. R. Co.

• Decision Date: 25 May 1929
• Docket Number: No. 26513.,26513.
• Citation: Ehlers v. Chi., B. & Q. R. Co., 118 Neb. 477, 225 N.W. 468 (Neb. 1929)
• Court: Nebraska Supreme Court
• Parties: EHLERS ET AL. v. CHICAGO, B. & Q. R. CO. ET AL.

118 Neb. 477

225 N.W. 468

EHLERS ET AL.

v.CHICAGO, B. & Q. R. CO. ET AL.

No. 26513.

Supreme Court of Nebraska.

May 25, 1929.

Syllabus by the Court.

The rule that the value of privately owned land taken for a railroad right of way should be estimated as of the time of the filing of the petition for the assessment of damages does not necessarily require the railroad company to pay interest on the appraisers' award from that date, where the owner retains possession and use of the land until a later date.

In a proceeding to condemn land for railroad purposes, alleged delay of the railroad company in procuring the assessment of damages held not to create a liability for interest on the award of the appraisers under the circumstances outlined in the opinion.

In a proceeding to condemn land for railroad purposes, the railroad company does not necessarily create a liability for interest on the appraisers' award from its date by notifying the county judge, when he accepted a deposit therefor, to retain the money until expiration of the time to appeal, where the owner of the land challenged the railroad company's power to exercise the right of eminent domain, declared the land was not subject to condemnation and failed at the time of such deposit to waive the right of appeal.

In a proceeding to condemn land for railroad purposes after it has been sold for delinquent taxes, the holder of the tax sale certificates is an owner within the meaning of the law granting to railroad corporations the right of eminent domain.

In a proceeding to condemn land for railroad purposes, all persons having an interest in the land are “owners” within the meaning of the statute granting to railroad corporations the right of eminent domain.

“A landowner who fails to appeal from the freeholders' award in a condemnation proceeding, is conclusively bound by it.” Omaha Bridge & Terminal R. Co. v. Reed, 69 Neb. 514, 96 N. W. 276.

According to the revenue laws, the holder of tax sale certificates is entitled to the amount of the taxes paid therefor with interest at the rate of 12 per cent. per annum until paid and cannot be deprived of that right in a proceeding to condemn the land for railroad purposes, where the award of the appraisers exceeds in amount all liens.

As a general rule the allowance of attorney fees as costs must be authorized by statute.

Appeal from District Court, Douglas County; Rhoades, Judge.

Suit by William A. Ehlers and another against the Chicago, Burlington & Quincy Railroad Company, impleaded with William Haffke. From a judgment of dismissal, plaintiffs appeal, and defendant first named cross-appeals. Affirmed.W. A. Ehlers, of Omaha, for appellants.

Byron Clark, Jesse L. Root, J. W. Weingarten, and C. W. Krohl, all of Omaha, for appellees.

Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, and DAY, JJ., and BLACKLEDGE and REDICK, District Judges.

ROSE, J.

This is a controversy over interest on an award by a commission appointedby the county judge of Douglas county to assess damages resulting from the taking of real estate for railroad purposes in a condemnation proceeding wherein the Chicago, Burlington & Quincy Railroad Company exercised the right of eminent domain. The property condemned is described as the south 90 1/4 feet of lot 5 and all of lots 6 and 7 in block 221 of the original plat of Omaha. On one of the lots there were three houses occupied by tenants.

The present action is an independent suit in equity in the district court for Douglas county for enforcement and distribution of the award with interest from the time the railroad company filed its petition in the office of the county judge, for an order restraining the railroad company from interfering with the occupancy of the tenants pending litigation and from collecting or receiving rents. Plaintiffs herein are William A. Ehlers and Margaret C. Ehlers, who procured title to the lots after the condemnation proceeding was instituted, and the defendants are the Chicago, Burlington & Quincy Railroad Company, Bryce Crawford, county judge, and William Haffke, holder of tax sale certificates. The answers of these defendants challenge the alleged right of plaintiffs to interest on the damages awarded from the beginning of the condemnation proceeding. From a judgment of dismissal plaintiffs appealed.

The record shows the regularity and the validity of the condemnation proceedings. Following are material dates and facts:

September 15, 1924, lots sold by the county treasurer to Haffke, who received three tax sale certificates--No. 7,703 for $2,657.96, No. 7,704 for $2,824.42, No. 7,705 for $2,824.46; September 15, 1924, Haffke paid subsequent taxes amounting with accrued interest to $423.33; December 5, 1924, petition of railroad company for condemnation filed in the office of the county judge and commissioners appointed; February 17, 1925, view of premises by commission after due notice to all parties interested; February 18, 1925, report of commission awarding property owners $15,528.30 filed in the office of the county judge--to Haffke $9,176.17 for taxes including interest at 12 per cent. per annum from September 15, 1924, to February 17, 1925, and to the Ehlers $6,352.13; February 24, 1925, award of $15,528.30 paid to the county judge by the railroad company; March 24, 1925, plaintiffs herein commenced in the district court for Douglas county a suit demanding from the railroad company $6,618.78 with interest from December 5, 1924, applying for and procuring an order restraining the county judge from paying to Haffke any sum in excess of $8,730.17 with interest at 12 per cent. per annum from September 16, 1924, to December 5, 1924, and also applying for and procuring an order restraining the railroad company from interfering with the occupancy of the premises by the tenants and with the collection of the rents; March 25, 1925, suit last described removed by the railroad company to the federal court and shortly afterward plaintiffs filed and procured a dismissal in the state court an order which the railroad company considered void, leaving the case pending in the federal court; April 1, 1925, plaintiffs commenced the present suit for the purposes already stated and the railroad company filed a petition April 3, 1925, for its removal to the federal court; May 1, 1925, parties stipulated that the railroad company waived its right to remove the present action to the federal court, and that out of the award of $15,528.30 $9,176.17 should be paid to Haffke and the remainder of $6,352.13 to plaintiffs, reserving to the respective parties the right to litigate herein the questions involving interest; May 1, 1925, award distributed by the county judge according to the terms of the stipulation.

[1][2] It is contended by plaintiffs that their damages were necessarily determined by the commission under the law as of the date on which the railroad company instituted the condemnation proceeding and that therefore they were entitled to interest therefrom on the award until paid or from December 5, 1924, to May 1, 1925. In the argument on this question plaintiffs cited the statute granting to railroad corporations the power of eminent domain and three former cases. Comp. St. 1922, § 5278; Missouri P. R. Co. v. Hays, 15 Neb. 224, 18 N. W. 51;Northeastern N. R. Co. v. Frazier, 25 Neb. 53, 40 N. W. 609;Fremont, E. & M. V. R. Co. v. Bates, 40 Neb. 381, 58 N. W. 959. The statute cited does not mention interest nor specifically provide that the damages shall be assessed as of the date on which the...