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

• Decision Date: 26 November 1889
• Citation: 44 N.W. 79,28 Neb. 94
• Court: Nebraska Supreme Court
• Parties: FREMONT, E. & M. V. R. CO. v. MEEKER.

28 Neb. 94

44 N.W. 79

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

v.MEEKER.

Supreme Court of Nebraska.

Nov. 26, 1889.

Syllabus by the Court.

1. In assessing damages for right of way for a railway, it is proper to consider the manner in which the road cuts the land, the excavations and embankments, and the exposure of the property to particular injuries from the proximity of the road which may result from its proper construction and operation. Railroad Co. v. Hays, 15 Neb. 224, 18 N. W. Rep. 51.

2. The land-owner is entitled to full compensation for the land actually taken, and for such damages to the residue of the land as are equivalent to the diminution in value thereof, general benefits not considered.

3. In an appeal to the district court from the award of damages by commissioners, where the only question is the amount of the recovery, new pleadings need not be filed in the district court.

4. Where instructions are given at the request of a party, he cannot predicate error thereon; nor can error be assigned where no exceptions were taken to the instructions given.

5. Questions relating to damages for right of way are peculiarly of a local nature, and, where the jury have been permitted to view the premises affected, and rendered a verdict, the verdict will not be set aside, unless it is clearly wrong.

Error from district court, York county; NORVAL, Judge.John B. Hawley, for plaintiff in error.

Merton Meeker, for defendant in error.

MAXWELL, J.

The defendant in error in 1887 was, and now is, possessed of about three acres of land in the outskirts of the city of York. In the year named the plaintiff in error located its line of road north of said tract, so that a small corner thereof was taken, being but 4-100 of an acre. The plaintiff in error, through its attorney, George W. Post, seems to have made an effort to effect a settlement with the defendant, but was unable to do so, and seems to have made no effort to condemn the land. In February, 1888, the defendant in error filed a petition in the county court of York county for the appraisement of the damages sustained by him. Notice was duly given the plaintiff in error, and commissioners selected and sworn, who made an award of $100 in favor of the defendant in error. From this award he appealed to the district court, where, on the trial, a verdict was returned in his favor for $1,200; and, a motion for a new trial having been overruled, judgment was entered on the verdict. The appellant filed a petition in the district court setting forth the same facts as in the petition for condemnation in the county court, and the railway company, answered substantially denying the facts stated in the petition. All this was unnecessary. Where the only question in such case is the amount of the recovery, no new pleadings need be filed in the district court; but no prejudice resulted to either party from the practice resorted to.

The testimony tends to show that the railway in question is located directly north of the land of the defendant in error; that there is a cut at that point of eight to nine feet in depth, and the earth is thrown out on each side of said cut, and covers the land condemned. It also appears that west of the defendant in error's land there is a high embankment in the public road, made necessary by a high bridge constructed over the railway at a point immediately north-west of the defendant's land. There is a plat of the various additions to the city before us, with the right of way and location of the bridge marked thereon. We also find in the record the following admission: “Subject to all objections as to relevancy and competency, the defendant (railway company) admits that the defendant railroad company took the land immediately east of the plaintiff's land, and the land immediately west of the plaintiff's land, to the width of 75 feet on each side of the center of the defendant's track, for a distance of three hundred feet east and three hundred feet west of each side of the plaintiff's property.” The testimony tends to show that a portion of the defendant in error's land was taken and appropriated, and that he has sustained a considerable amount of damages. The jury were permitted to view the premises, and hence were possessed of means of arriving at the...