Festner v. The Omaha & Southwestern R. Co.

• Decision Date: 11 March 1885
• Citation: 22 N.W. 557,17 Neb. 280
• Parties: FREDERICK C. FESTNER, PLAINTIFF IN ERROR, v. THE OMAHA & SOUTHWESTERN RAILROAD, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

22 N.W. 557

17 Neb. 280

FREDERICK C. FESTNER, PLAINTIFF IN ERROR, v. THE OMAHA & SOUTHWESTERN RAILROAD, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 11, 1885

ERROR to the district court for Douglas county. Tried below before NEVILLE, J.

AFFIRMED.

A. C Wakeley and A. N. Ferguson, for plaintiff in error.

C. J Greene, for defendant in error.

OPINION

MAXWELL, J.

In January, 1882, the plaintiff was the owner of lots 7 and 8 in block 154, in the city of Omaha. There was a dwelling-house on lot 7, in which the plaintiff with his family resided. At that time the defendant instituted proceedings in condemnation of right of way and for depot grounds. Commissioners were appointed, damages assessed, and the property condemned. From the assessment of damages thus made the plaintiff appealed to the district court, where the jury rendered a verdict in his favor for the sum of $ 5,250. The plaintiff now brings the cause into this court on error.

The errors relied upon will be considered in their order. First, "Error in the assessment of the amount of recovery."

One James F. Morton, a witness called by the plaintiff, testified that lot 8 was worth from $ 800 and not to exceed $ 1,000 and that lot 7 was worth at least $ 3,000. Byron Reed placed the value of lot 8 at from $ 1,000 to $ 1,200, and lot 7 at $ 2,500, without the improvements. M. G. McKoon, whose deposition was taken in California, testified that the value of lot 7 was $ 2,500 to $ 2,600, and lot 8 was $ 800. Other witnesses testified on behalf of the plaintiff, but none of them estimated the value of the lots in question as high as those named above.

On the behalf of the defendant, I. S. Hascall testified that the value of lot 8 was about $ 600, and lot 7 from $ 1,400 to $ 1,500. George Smith, county surveyor of Douglas county, testified that the value of lot 7, without the improvements thereon, was $ 1,200, and lot 8 $ 400. Six other witnesses testified to substantially the same values as Smith.

The plaintiff, after the condemnation proceedings, seems to have purchased the house on lot 7, and removed the same to other lots where it was repaired and made suitable for a house. A number of witnesses testified to the value of this house, some of whom had not seen it until after removed. They estimated the value at from $ 4,380 to $ 5,360. Benjamin A. Fowler, an architect, called by the plaintiff, estimated the value, "exclusive of the basement," at $ 3,400. He afterwards stated that it probably was worth five per cent less in January, 1882. George Smith, above referred to, who was one of the original appraisers, testified to the condition of the premises and the character of the improvements when the condemnation took place. He states (page 44 of record): "We took the dimensions of all the houses upon all the grounds in the manner by which we arrived at the valuation. We made an estimate of the amount of material in it by its dimensions, and estimated both the material and about what labor had entered into that building and all other buildings of any kind on the ground." * * * *

Q. What, in your judgment, was the value of that house as it stood; of the veneered house at that time?

A. I put it at about $ 2,800 to-day.

In this he is sustained by other witnesses, and in our view a preponderance of the testimony fixes the value of the improvements, including the house, at not far from $ 3,000, and of the lots at about $ 2,000. As the verdict was for a sum in excess of the aggregate of these sums, the first assignment of error is not well taken.

Second. During the argument of the cause to the jury the attorney for the defendant said: "Had I been permitted...