Kayser v. Chi., B. & Q. R. Co.

• Decision Date: 24 January 1911
• Docket Number: No. 16,242.,16,242.
• Court: Nebraska Supreme Court
• Parties: KAYSER ET UX. v. CHICAGO, B. & Q. R. CO.

88 Neb. 343

129 N.W. 554

KAYSER ET UX.

v.CHICAGO, B. & Q. R. CO.

No. 16,242.

Supreme Court of Nebraska.

Jan. 24, 1911.

Syllabus by the Court.

The homestead of husband and wife was held in the name of the wife. An action for damages was instituted growing out of the alleged diminution in the value of the property by reason of the contiguous construction of railroad tracks and freightyards. The petition alleged that the real estate was the property of both husband and wife, and they were joined as plaintiffs. No issue as to ownership was specifically raised by the answer. Held, that the plaintiffs were properly joined, and there was no error in overruling an objection to the question as to the ownership or interest of the husband.

Had the husband been an unnecessary party plaintiff, that fact would not prevent a recovery, as judgment could have been rendered for either party, if successful, under the provisions of section 429 of the Code of Civil Procedure.

In their efforts to prove the amount of damages sustained by plaintiffs, certain competent witnesses were asked as to the market value of the property immediately before the construction of defendant's tracks and the value after the laying of the tracks and their use for the transfer of freight. This was the proper practice. Chicago, R. I. & P. R. Co. v. O'Neill, 58 Neb. 239, 78 N. W. 521. On cross-examination the witnesses were asked as to the elements considered by them in arriving at their valuations, some of which were shown not to be proper to have been taken into consideration. This cross-examination was proper as tending to weaken the force or weight of their testimony, but did not so destroy it as to require the whole thereof, including that which was competent, to be stricken out and withdrawn from the consideration of the jury.

“The jury in fixing the damages sustained by a landowner in consequence of the appropriation or injury of his property for a public use may take into account every element of annoyance and disadvantage resulting from the improvement which would influence an intending purchaser's estimate of the market value of such property.” Chicago, R. I. & P. R. Co. v. O'Neill, 58 Neb. 239, 78 N. W. 521.

Those elements include injury from smoke, noise, soot, cinders, and vibration.

The testimony of witnesses as to the extent of the diminution in value of plaintiffs' property by reason of the construction of lines of track and their use by engines and cars was conflicting. The jury was sent out by the court to view the premises. Held, that the verdict, while apparently large, but within the estimates of some of the witnesses, could not be molested.

Appeal from District Court, Adams County; Dungan, Judge.

Action by George Kayser and wife against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Jas. E. Kelby, Frank E. Bishop, H. F. Rose, and John C. Stevens, for appellant.

Tibbetts, Morey & Fuller, for appellees.

REESE, C. J.

This is an appeal from the district court of Adams county. The action was instituted for the purpose of recovering damages alleged to have been sustained by reason of the construction of certain railroad tracks on the opposite side of the street in front of plaintiffs' residence in the city of Hastings. The facts briefly stated are that the line and tracks of defendant's railroad had previously been constructed about one block, or from 300 to 350 feet, south of and parallel to First street in said city. Between that street and the tracks was a block of lots with residence improvements thereon; that portion on the north side of the block fronting on First street. Plaintiffs' residence is situated on the north side of said street, fronting to the south thereon. Prior to the commencement of this action, the defendant obtained, by purchase or condemnation, all the lots south of First street, removed the dwellings and other buildings, trees, and shrubbery therefrom, excavated the ground from 3 to 7 feet, placed 4 tracks thereon, and constructed its freight depot and platform on and against the curb line on the south side of the street, the platform extending to within the width of an alley (about 20 feet) of a point of and in front of plaintiffs' residence, the tracks extending the whole distance of the block. The action was for the diminution in value of plaintiffs' residence property by reason of the construction of the tracks, the practically constant use thereof by switch engines and freight cars in the transfer of freight, and the “noise, jarring, dust, smoke, soot, cinders, and noxious odors created by such traffic.” With the exception of the allegation of the corporate capacity of defendant, and that it has owned and operated a line of railroad through the city of Hastings for more than 20 years, the answer is a general denial. There was a jury trial which resulted in a verdict and judgment in favor of plaintiffs. Defendant appeals.

The evidence shows the making of the change in defendant's tracks from the main line to the point south of plaintiffs' residence substantially as alleged in the petition, and as above outlined. The plaintiffs are husband and wife. The title to the property is held in the name of the wife, and it is shown to be the homestead of both and their family, consisting of one daughter. The action having been brought in the names of...