Fremont, E. & M. V. R. Co. v. Bates

• Decision Date: 02 May 1894
• Court: Nebraska Supreme Court
• Parties: FREMONT, E. & M. V. R. CO. v. BATES.

40 Neb. 381

58 N.W. 959

FREMONT, E. & M. V. R. CO.

v.BATES.

Supreme Court of Nebraska.

May 2, 1894.

Syllabus by the Court.

1. The rulings of the trial court in admitting testimony examined, and held no prejudicial error in such rulings.

2. The action of the court in giving certain instructions, and refusing to give others, requested by defendants, reviewed, and held no error in either the giving or refusing.

3. On the trial of an appeal in the district court from condemnation proceedings of right of way of a railroad through a farm, held, that testimony of the rent which could be obtained for the farm since the appropriation of the right of way was competent, not as a basis for damages, but as tending to show whether such appropriation had depreciated the market value of the farm; and this is the rule whether the rent is or had been for a money consideration or a share of the crops.

4. The valuation of property taken for a right of way for a railroad should be made as of the time of filing the petition for the assessment of damages for the land. Railway Co. v. Hays, 18 N. W. 51, 15 Neb. 224.

5. “In an inquiry whether, and how much, the part of a farm not taken for railroad right of way is depreciated in value by the appropriation of a part, evidence as to the size of the farm; the purpose for which it is used; the improvements thereon, and how located; the direction of the road across the farm; the cuts and fills made or to be made in the construction of the road; the width of the right of way; the height of embankments; the depth of ditches; the inconvenience of crossing the track from one part of the farm to another; the liability of stock being killed; the danger from fire from passing trains,--are all facts competent for the jury's consideration in determining the depreciation in value of the remainder of the farm. Railway Co. v. Teters, 68 Ill. 144, and Mills, Em. Dom. § 163, followed.” Railway Co. v. Todd (opinion filed March 21, 1894) 58 N. W. 289.

Error to district court, Douglas county; Keysor, Judge.

Action by George Bates against the Fremont, Elkhorn & Missouri Valley Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.John B. Hawley, B. T. White, and Charles Ogden, for plaintiff in error.

Cowin & McHugh and Henry D. Estabrook, for defendant in error.

HARRISON, J.

March 23, 1887, the plaintiff in error filed a petition in the county court of Douglas county, and instituted proceedings to condemn the right of way, etc., for a line of railroad across and through the S. E. 1/4 of section 20, township 16, range 12, in Douglas county, Neb. The regular condemnation proceedings were had, and the commissioners made a report, finding the quantity of land taken to be 9.88 acres, and valued the same at $60 per acre, and awarded and appraised the damages to the owner in the sum of $592.80. The defendant in error, George Bates, was, at the time of the condemnation proceedings, the owner of the east half of said section 20, which was all in use as one farm. He appealed from the award of the commissioners to the district court of Douglas county. The case was tried to the court and a jury on the papers sent up from the county court, without further pleadings. The jury returned a verdict for Bates in the sum of $5,084.22. The railway company filed a motion for a new trial, which was overruled, and judgment entered on the verdict against the company. In the record there is the following stipulation: “It is hereby agreed by the parties to this suit that for the purpose of the hearing therein, on error in the supreme court, there was presented to the county judge of Douglas county by the railroad company a petition in due form of law, praying for the appointment of appraisers to assess for the right of way in question. That such appraisers were duly appointed, and made their appraisement and award, from which the plaintiff duly appealed to the district court, and filed an appeal bond in due time and in proper form, and that no questions are to be raised in the supreme court on account of the absence of pleadings of any kind, and that the report of the appraisers to the county judge, and which appears in the bill of exceptions, shall stand and be taken as a sufficient pleading and description of the right of way and land in controversy, and the case shall be considered and disposed of in all respects as though the record showed a sufficient petition for the appointment of the appraisers and their appointment by the county judge; also, that an appeal from the award was duly and legally taken, and an appeal bond from the award of such appraisers filed in due time, as required by law. Dated at Omaha this eighth day of June, A. D. 1892.” This somewhat imperfect and general statement of some of the main and more important points in the testimony will, we think, suffice for an understanding of the questions raised by the petition in error for our decision.

The first assignment of error argued by counsel for plaintiff in error in the brief filed is that the trial court erred in permitting the plaintiff, Bates, and some of his witnesses, to testify over objections of defendant, the railroad company, to the value of the farm after the railroad was constructed: in other words, that the testimony as to value should have been confined to the time of the taking,--March 23, 1887. The rule in this state we believe to be that the damages must be assessed as of the time of the taking. In the case at bar the witnesses were some of them interrogated in regard to the value of the land immediately prior to March 23, 1887, and then asked, “What, in your opinion, was the market value of that farm per acre, after the railroad had gone through it, and made its embankments and cuts?” To this defendant objected. The objection was overruled, and the witness allowed to answer. One of these witnesses had, prior to the asking of the above question, been asked, and answered that he knew or was acquainted with the reasonable market value of the Bates farm during the spring and summer of 1887. The evidence in this case shows that the 320 acres of land owned by defendant was all worked as one farm, the northeast quarter being a greater portion of it used for pasture, and what is known in this state as “hay land.” There was also a part of this quarter section which was being cultivated. The southeast quarter was all, or had been all, under cultivation, and on this quarter section there were a house, stable, and other improvements. That running through the farm there was a stream of water, and that, taken as a whole, the half section of land constituted a good Nebraska farm, and was worth, according to the witnesses for plaintiff, from $70 to $80 per acre, and by witnesses for defendant stated to be worth from $50 to $60 per acre. The railroad was so constructed that its direction was somewhat diagonally across the entire southeast quarter, thus dividing the farm. Its line was near the house and other buildings, some 200 feet or more distant from the house, and to the north of it. In front of the house was what was described as a fill, some 20 feet high, and beyond this, and on the plaintiff's land, a deep cut. The condemnation was in March, and the fills and cuts on this farm were made during the following summer. The court below, in permitting the questions such as we have quoted above to be answered, probably committed an error, but, after a careful and critical reading of all the testimony in the case, we are satisfied that the error, if any, was without prejudice to the rights of defendant. There were several witnesses who testified as to the values before and after the taking, and the court instructed the jury on this particular point, as to time of computing the damages, as follows: “The measure of damages is the difference between the fair market values of plaintiff's whole farm of 320 acres with and without defendant's right of way as graded and constructed. The values to be compared are those of March 25, 1887, the day when said condemnation proceedings were commenced in the county court. It is true that the improvements on said right of way were not made on that day, but the law presumes them to have been made on said day, as contemplated and outlined in defendant's petition in the condemnation proceedings. You will not therefore, in your estimate of said values, be allowed to include any elements of appreciation or depreciation of values which have arisen since said 25th day of March, 1887.” And there is evidence in the record that the market value of land remained very much the same during the entire year of the taking.

There is the further reason for not reversing the case because of the possible error committed in the admission of this testimony. The counsel for defendant tried the case upon exactly the same theory as to values and the time at which the witness should be asked to state them. We will quote his examination of one of his witnesses: D. J. O'Donahue, called as a witness for defendant, after some preliminary testimony, was questioned and answered as follows: “Q. I will ask you to state what the value of this Bates farm per acre was immediately prior to the 25th day of March, before the location and construction of the railroad through the same. A. I think about fifty dollars an acre would be my estimate. Q. We are asking you for your judgment. A. Yes, sir. Q. What was the value of the farm immediately after the construction and operation of the railroad through the farm? A. I don't think there was any material change in the value of the farm.” It will be seen from this that he introduced exactly the same kind of testimony to which he had previously objected when offered and introduced by plaintiff. This waived the error, if any, of the court in admitting the testimony, and it cannot be considered, applying the rule in Railroad Co. v. Wiebe, 25 Neb. 542, 41 N. W. 297, where it was...