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

• Decision Date: 12 November 1881
• Citation: 11 Neb. 592,10 N.W. 493
• Court: Nebraska Supreme Court
• Parties: FREMONT, ELKHORN & MISSOURI VALLEY R. CO. v. LAMB. FREMONT, ELKHORN & MISSOURI VALLEY R. CO. v. LAMB.

11 Neb. 592

10 N.W. 493

FREMONT, ELKHORN & MISSOURI VALLEY R. CO.

v.LAMB.

FREMONT, ELKHORN & MISSOURI VALLEY R. CO.

v.LAMB.

Supreme Court of Nebraska.

Filed November 12, 1881.

Error to the district court for Stanton county.

Joy & Wright, for plaintiff.

H. C. Brome and John A. Ehrhardt, for defendant.

LAKE, J.

The questions presented by the records in these two cases are in all respects the same as we have already considered at this term, in the case of Fremont, Elkhorn & Missouri Valley R. Co. v. Whalen, ante, 491. The course pursued in the examination of witnesses to prove damages by reason of the location of the road, and the character of the testimony, were not materiallydifferent. The instructions given to the jury in the three cases were identical. It is unnecessary, therefore, to go over the ground covered by the opinion in the Whalen Case, as we have nothing material to add to what is there said. However, as a fair sample of the evidence which the jury were particularly instructed to consider on the question of damages, we will give the direct examination of a witness in each of these two cases in full. In the first case, in their numerical order, H. C. Davis was called by the defendant in error, and testified as follows:

Question. Are you acquainted with the value of lands in Stanton county--the fair market value? Answer. I believe I am fairly acquainted with the value of lands in this vicinity. Q. Were you acquainted with the fair market value of the S. 1/2 of the S. E. 1/4 of section 16, township 22, range 2, east of the sixth P. M., before the building of the railroad? A. How long ago? Q. Immediately before, were you acquainted with the fair market value of that land? A. I believe I was. Q. What would be the fair market value of that piece of land before that road was built? A. About $10 or $11 an acre. Q. How much would that 80 acres of land be worth--not by the acre, but the entire piece, together--before the road was built? A. About $850, in my judgment. Q. What was the fair market value of that piece of land immediately after the railroad had been completed through it? A. I should not think that it would sell for more than eight dollars an acre. Q. What was the entire tract worth immediately after the railroad was completed through it, exclusive of what they took? A. I would have to base my opinion in regard to the value of that in consideration of the course the road takes. Q. What I want to get at is the fair market value of the tract at that time, taking everything into consideration. A. I should think the remainder of the land would be worth at least, or about, $640.

And in the other case, J. R. Layton, the first witness after Lamb himself, gave the following on his examination in chief on the question of damages:

Question. Are you acquainted with the value of lands in Stanton county? Answer. To some extent, I am. Q. Do you know the value of the piece of land in controversy--that is, the south half of the S. E. 1/4 34, 24, 3 E.--before the railroad company built across it? A. Well, I don't know that I would put it over from $1,600 to $1,800. Q. Do you know what the reasonable market value of the land was? Answer whether you know that fact. A. I believe I do. Q. What was it worth before the railroad company built across it? A. From $1,500 to $1,800. Q. What was it worth after the railroad company built across it? A. I should not consider it worth over $500. Q. You have examined the piece of land, have you, and know how the road runs through it? A. Yes, sir; I have made no particular examination for that purpose, though. Q. You know how the railroad runs across it? A. Yes, sir.

From what is here given, which is the entire testimony in chief of these two witnesses on the question of damages, and a fair sample of that of all the others, it will be seen that the province of the jury was directly...