Flower v. Nichols Bros.
| Decision Date | 09 June 1898 |
| Docket Number | 8103 |
| Citation | 75 N.W. 864,55 Neb. 314 |
| Parties | WARREN A. FLOWER v. NICHOLS BROS. ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Scott's Bluff county. Tried below before NEVILLE, J. Affirmed.
AFFIRMED.
T. M Morrow and W. J. Richardson, for plaintiff in error.
O. W Gardner and M. J. Huffman, contra.
Warren A. Flower, plaintiff in error, was plaintiff in the court below. In 1893 the defendants constructed an irrigating ditch or canal over and across his lands. Plaintiff insists that defendants entered upon his land without authority or permission from him so to do, while the defendants maintain that they had the right to construct said ditch, by reason of a contract entered into by them with plaintiff, through his duly authorized agent. This suit was instituted before a justice of the peace to recover damages for the alleged trespass, where defendants offered in writing to permit judgment to go against them in the sum of $ 27, which offer was rejected by plaintiff, and from the judgment there rendered against him an appeal was prosecuted by plaintiff. A trial to a jury resulted in a verdict and judgment in his favor for $ 10, but all costs which accrued subsequent to the offer of compromise were taxed against him.
The sixth and seventh paragraphs of the court's charge to the jury are assigned for error in this court. But they cannot be reviewed, because not separately assigned in the motion for a new trial. Six of the eleven instructions given by the court below on its own motion were grouped in a single paragraph in the motion for a new trial. Such an assignment is insufficient, under the repeated decisions of this court, if one of the instructions included in such group was properly given. Errors in instructions must be separately assigned in the motion for a new trial, as well as in the petition in error. (Kaufmann v. Cooper, 46 Neb. 644, 65 N.W. 796; McCormal v. Redden, 46 Neb 776, 65 N.W. 881; Graham v. Frazier, 49 Neb. 90, 68 N.W. 367; Johnston v. Milwaukee & Wyoming Investment Co., 49 Neb. 68, 68 N.W. 383; Union P. R. Co. v. Montgomery, 49 Neb. 429, 68 N.W. 619.) The third instruction was one of the number embraced in the same assignment, which stated "plaintiff denies that any consent was given or that any agreement was made by which defendants were authorized to construct said ditch across said lands." This portion of the charge was favorable to plaintiff, and manifestly the giving thereof is not reversible error. It follows that the sixth and seventh instructions cannot be reviewed.
The jury were instructed, at the request of defendants, that plaintiff had the right to the use of the water in the ditch or canal by paying to the owner thereof a just and reasonable compensation for such use. Plaintiff could not have been prejudiced by this instruction, as it could not have had any influence with the jury, unfavorable to the plaintiff, in determining the amount of his damages.
Complaint is made of the admission of the testimony of certain designated witnesses for the defendants. These rulings were not assigned for error in the motion for a new trial. Said motion does not even contain the usual assignment of "errors of law occurring at the trial." The...
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