Hoesly v. Department of Roads and Irrigation

• Decision Date: 14 May 1943
• Docket Number: 31482.
• Citation: 9 N.W.2d 523,143 Neb. 387
• Parties: HOESLY v. DEPARTMENT OF ROADS AND IRRIGATION.
• Court: Nebraska Supreme Court

9 N.W.2d 523

143 Neb. 387

HOESLY v. DEPARTMENT OF ROADS AND IRRIGATION.

No. 31482.

Supreme Court of Nebraska

May 14, 1943

Syllabus by the Court.

1.In error proceedings, the findings of appraisers in their report to the county judge in condemnation action will be given the same weight and conclusiveness as a verdict of a jury.

2.Under section 14-a of the Revised Rules of this court, it is provided that counsel shall set out in his brief an assignment of errors, separately numbered, upon which he relies for a reversal.Attorneys should follow this rule in preparing briefs.

3.When counsel, after an adverse ruling on a demurrer, elect to stand thereon and plead no further, the case then stands as upon default, and final judgment may be properly entered thereon.

4.In the absence of agreement to the contrary, payment for property taken under power of eminent domain must be made in money, as the landowner cannot be compelled to accept other property in lieu thereof.When the power of eminent domain is resorted to, there must be a standard medium of payment binding on both parties, and the law has fixed that standard as money.

5.A party does not waive his right to appeal from a judgment by accepting a benefit thereunder, if the benefit is one to which he is so absolutely entitled that a reversal of the judgment will not affect his right to it.

6."Where an appellant has accepted the benefits of the judgment appealed from, and there is no possibility that the appeal may lead to a result whereby the appellant may recover less than has been received under the judgment, the right to appeal is unimpaired."State v Jemez Land Co., 30 N.M. 24, 226 P. 890.

YEAGER, J dissenting.

Walter R Johnson, Atty. Gen., H. T. White, Asst. Atty. Gen., and John H. Comstock, Asst. Atty. Gen., for appellant.

Wagner & Wagner, of Columbus, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

PAINE Justice.

This is an error proceeding to correct an award made by the appraisers in the condemnation of land for a state highway, upon an application made by the department of roads and irrigation to the county judge of Platte county, Nebraska.The district judge ordered that the award of the appraisers be corrected to show an award of $5,087.90, from which order the department appealed, and filed a transcript of the proceedings in the district court, but there is, of course, no bill of exceptions.This action was before this court, and our first opinion in this case, released November 20, 1942, will be found in 142 Neb. ---, 6 N.W.2d 365.An oral argument was allowed upon the motion for rehearing, after which this opinion was prepared.

The amended petition in error, filed February 14, 1942, sets out that on August 17, 1940, the department of roads and irrigation of the state of Nebraska, hereinafter called the defendant in error, made application to the county judge of Platte county for the appointment of appraisers to appraise an easement for road purposes across the real estate of Marcus Hoesly, hereinafter called the petitioner in error.There is attached to this amended petition in error, as exhibit A, the application for the appointment of appraisers, filed in the county court, describing in detail the land over which the easement was desired, and then asking that, in accordance with sections 26-709 to 26-715, both inclusive, and section 39-1403, Comp.St.1929, said county judge shall direct the sheriff to summon three disinterested freeholders of the county, whose duty it shall be to carefully inspect and view the above described land and hear the parties interested therein, and who shall thereafter assess the damages which the owner will sustain by the appropriation of said land for highway purposes.

In said exhibit A there appears the return of the appraisers to the county court, which return shows that the sheriff had served their appointment upon them, that they had taken and signed an oath, that they had inspected the real estate, and that they did sit as a board of appraisers and received the evidence relative to the amount of damages that had been sustained, and do make their return concluding with the paragraph showing that Marcus Hoesly, petitioner in error, will suffer damages by reason of the taking of said land for right of way purposes by the department of roads and irrigation, and then follow 12 specific items of damage, amounting to a total sum of $3,087.90.The report concludes with these paragraphs:

"In the event that the state elects to eliminate stock pass as shown between section 17and18, on the plans of said project then we find the total of all damage to be $5,087.90.

"All of which is hereby respectfully submitted.

"Dated this 31st day of August, A. D., 1940.

"John Eihausen

"Henry Luchsinger, Jr.,

"Julius O. Nyffeler

"Appraisers."

On September 20, 1940, the county judge received a check from the state of Nebraska for Marcus Hoesly for $3,087.90, and gave a receipt, reading as follows:

"Receipt November 4th, 1940.Markus Hoesly has elected to take cash and declines to accept a cattle pass.He therefore acknowledges receipt of $3,087.90, on this award and claims the balance of $2,000."

Either party had the right to appeal to the district court from this award by filing a transcript in the district court within 60 days from the date of the filing of this report by the appraisers, and the parties would then have proceeded to trial as though the action had been originally instituted in said district court.Comp.St.1929, § 26-711.

However, neither of the parties sought relief by such an appeal.This court has said that, where proceedings commenced by the state in such a case result in unsatisfactory decision, the state should either appeal or abide by the consequences.Goergen v. Department of Public Works, 123 Neb. 648, 243 N.W. 886.

This left as the only method of review of which either party might avail himself a proceeding by a petition in error, as set out in section 20-1903, Comp.St.1929.

Marcus Hoesly therefore had three months from the date of the entry of the final order made by the appraisers in the condemnation matter, under section 20-1931, Comp.St.1929, and his petition in error was filed November 28, 1940.As either party had the right to appeal to the district court by petition in error, then either party, after the determination in the district court, would likewise have a right to bring that judgment to this court for review by error proceedings.One cannot be denied his right of review in the appellate courts, and proceedings in error are always resorted to where no other method is pointed out or provided for.In error proceedings from the orders of the county board, its findings are given the same weight and conclusiveness as the verdict of a jury, or the judgment of a court.Dodge County v. Acom, 72 Neb. 71, 100 N.W. 136;In re Estate of Berg, 139 Neb. 99, 296 N.W. 460;Loup River Public Power District v. Platte County, 135 Neb. 21, 280 N.W. 430.

The defendant in error filed a general demurrer to the amended petition in error, for the reason that the facts stated were insufficient to constitute a cause of action against the defendant in error.

On April 4, 1942, a judgment was entered by the district judge, setting out that upon the overruling of the demurrerthe defendant in error excepted thereto and declined to plead further, and thereupon the matter was submitted to the court for final disposition.

The judgment further states that the appraisers by their award found that the plaintiff in error had sustained damages in the sum of $5,087.90 by reason of the taking of the easement; further that the appraisers erred in injecting a stock pass into their award, for the issues did not...