Fremont, Elkhorn & Mo. Valley R. Co. v. Whalen

• Decision Date: 12 November 1881
• Citation: 10 N.W. 491,11 Neb. 585
• Parties: FREMONT, ELKHORN & MISSOURI VALLEY R. CO. v. WHALEN.
• Court: Nebraska Supreme Court

11 Neb. 585

10 N.W. 491

FREMONT, ELKHORN & MISSOURI VALLEY R. CO.

v.WHALEN.

Supreme Court of Nebraska.

Filed November 12, 1881.

Error to the district court for Stanton county, the cause having been brought there on appeal by Whalen from an assessment of damages in the sum of $191, made in the county court in his favor, on account of the location of the railroad over certain land owned by said Whalen. Trial before Barnes, J., and a jury, with verdict and judgment against the railroad for $892.11.Joy & Wright, for plaintiff.

H. C. Brome and J. A. Erhardt, for defendant.

LAKE, J.

The first error complained of is that the damages found by the jury were not warranted by the evidence. If all of the evidence submitted to the jury, and which, by the instruction of the judge, they were required to consider in making up their verdict, had been competent, this objection to the finding would have been without merit; but, for the reasons we shall give in considering another branch of the case, we are of opinion that it is well taken. The second and third errors assigned are of like import, and need not be separately considered. The fourth error assigned is “that the court erred, over the objection of the defendant company, in permitting the introduction of the testimony by plaintiff in the court below of the witnesses James McKinney” and others, “upon the matter and question of value of real estate and damages sustained in the location of said road.” This objection is too general. Much of the testimony of each of these witnesses was clearly admissible upon the questions here referred to; therefore, to avail, the objection should have specified the particular portion aimed at, as by giving the number of the question or answer supposed to have been improperly admitted. The fifth and sixth assignments have the same defect, and will not be further noticed. The seventh, eighth, and ninth errors assigned pertain to the judge's charge. The instructions particularly complained of are the third, fourth, and fifth, as numbered in the record. These are all devoted to one subject--the rule of damages by which the jury were to be guided in making up their verdict. By them, in very general terms, the jury were in substance told that, in estimating the damages to which the owner of the land was entitled, they should, from all the evidence before them, ascertain the fair market value of the land at the time of the condemnation of the portion taken for right of way. This done, they should next find from all the evidence the market value of the tract with the right of way carved out of it, excluding from their consideration all incidental benefits which might be supposed to flow to the public from the building of the road; and if the market value so ascertained, “immediately after and on the carving out of said right of way therefrom, was equal to or greater than it was immediately before the taking of said right of way,” then no damages should be awarded; but if they found the value of the tract to be less with the right of way taken than it was before, the difference would be the true measure of damages.

The rule of compensation for right of way here laid down is clearly erroneous. It not only states the law incorrectly, but seems to have been given without much if any regard to the evidence which the jury were to consider. For instance, there was no evidence whatever tending to show that the land, after the condemnation for right of way, “was equal to or greater than it was immediately before, so that it was impossible for the jury to so find, and their minds ought not to have been encumbered, if not confused, by a question not properly before them. But even if there had been evidence of the character implied by this portion of the charge, still the owner of the land would have been entitled to damages equal to the value of the portion appropriated to the purposes of the road. It is...