Missouri Pacific Railway Co. v. Hays
| Decision Date | 19 December 1883 |
| Citation | 18 N.W. 51,15 Neb. 224 |
| Parties | MISSOURI PACIFIC RAILWAY COMPANY, PLAINTIFF IN ERROR, v. JESSE L. HAYS, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county, where the cause had been brought on appeal by Hays from an award of damages for the location of the right of way of the M. P. R. R. over his land, etc. There was a trial, and a verdict in favor of Hays for $ 275. This verdict was set aside on motion of Hays and a new trial granted. At the second trial, before DAVIDSON, J., verdict in favor of Hays for $ 860, judgment motion for new trial overruled, and the R. R. company came up on a petition in error.
REVERSED AND REMANDED.
John L Webster, for plaintiff in error, on setting aside first verdict, cited: Sutherland Dam., 810. Woodward v Leavitt, 107 Mass. 453. As to date when damages should be assessed, cited: Burt v. Merchants Insurance Co., 115 Mass. 1. Mills Eminent Domain, § 174. Logansport v. Buchanan, 52 Ind. 163. Indiana v. Hunter, 8 Ind. 74.
J. H. Broady, for defendant in error, contended that granting new trial was discretionary; that the value of the land is to be estimated at time of condemnation, which is the time when it was taken, which is the time the title passes, which is the time the money is ready, which is the time it is paid into the county court, which cannot be before filing of report of assessment. Sioux City v. Brown, 13 Neb. 319. F. E. & M. V. R. R. v. Whalen, 11 Neb. 588. Driver v. Railroad, 32 Wis. 569. Ray v. A. & N. R. R., 4 Neb. 440. O. & N. R. R. v. Menk, Id., 24. Daniels v. Railroad, 35 Iowa 129.
It is claimed that the court below erred in setting aside the first verdict and granting a new trial. The record before us is not in a condition to show upon what particular ground that ruling was made. In the motion for a new trial several reasons were assigned therefor, followed by the statement that, "Reference is hereby made to affidavits in support of some of the causes herewith filed." There is also appended to the bill of exceptions, but in no way made a part of it, the affidavits of persons representing themselves as members of the jury respecting the deliberations in the jury room, and giving reasons which induced them to finally assent to the verdict after having voted for a much larger one. There is nothing, however, which enables us to know that these are the affidavits referred to in the motion, or that they were considered by the judge in ruling upon it. Indeed, there is nothing in the record to indicate with certainty just what the ruling was based upon. In this respect the record is strangely defective.
There is a very large discretion given to trial judges in the matter of granting new trials. By this we by no means intend to convey the idea that their rulings in this respect are not subject to review by appellate courts, but simply that, before they will be interfered with, it must be clearly shown that some legal right of the party objecting has been disregarded. Woodward v. Leavitt, 107 Mass. 453 (9 Am. Repts. 49).
Among the grounds assigned in the motion for the new trial are, 1st, "Irregularity in the proceedings of the jury, and of the said plaintiff." 2d, "Misconduct of the jury, and particularly of the two members, Spence and Klever, and misconduct of the said plaintiff." These were good reasons, if proved, for setting the verdict aside. Code of civil procedure, § 314. And that they were proved must be presumed in the absence of a showing to the contrary. Credit Foncier v. Rogers, 10 Neb. 184, 4 N.W. 1012. Frey v. Drahos, 7 Neb. 194. Deroin v. Jennings, 4 Neb. 97. Singleton v. Boyle, 4 Neb. 414. Therefore, if the verdict were set aside on either or both of these grounds, and a review of the ruling were desired, there should have been a bill of exceptions showing just what the judge acted on. The 3d and 4th objections related to the sufficiency of the evidence, and the 5th, to rulings on its admissibility, and in charging the jury, which are, perhaps, fully disclosed by the bill of exceptions of the evidence, and the instructions, which became a part of the record on being filed by the clerk.
Our consideration of the first and second of these objections leads to the conclusion that the order granting the new trial should not be disturbed. But, in addition to this, we are unable to say that the fifth objection alone did not furnish a sufficient reason for the ruling complained of. Turning to the record, we discover several rulings upon the admissibility of evidence which were manifestly erroneous. For instance, it was shown that, in passing through the farm, the railroad skirted a small creek, and a witness was asked how the location of the track affected its value. This was objected to as "not proper evidence to go to the jury," and the objection sustained. It appeared that the farm was devoted chiefly to pasturage, and in view of that use, it was clearly competent to advise the jury particularly of the effect of a practical separation of the creek from the rest of the land.
Again, it appeared that between the right of way and creek, there was left a small, irregular strip of land, quite difficult of access by reason of the grade of the road. A witness, shown to be competent, was asked without objection, how much in value that piece was injured, and answered, "Ten dollars per acre." On motion of the plaintiff's attorney, this answer was excluded on the ground that the injury was "on account of the difficulty of getting to it, and crossing the railroad." This was error. The testimony was excluded for the very reasons which made it admissible. The injury to the owner of a farm from the building and operating of a railroad across it, is "not merely by the subtraction of so many feet, or acres, from his estate, valued as if sold for an ordinary purpose, and according to a plan devised for the most profitable use of the whole, but still more by the mode of taking, and its effect on the property which is left, viz., the way in which the railroad cuts the tract or lot, as diagonally, by a curve, or otherwise; the inconvenient shape in which the remaining part is left, the depth of excavations or height of embankments, the obstruction or entire interruption of access to public or private ways, the division of the tract or lot into different parts so that persons or cattle cannot pass from one to the other, or, if at all, only with greater or less difficulty or danger, and the exposure of the owner's property, as buildings, forests, and crops to particular injury from proximity to the railroad." Pierce on Railroads, 211.
And there were several other rulings on the evidence, to which, however, we will not take the time to refer particularly, which might have justified the court in setting the verdict aside. In this respect, therefore, we find no error.
But there are many objections made to the second trial, of which we will consider such as seem to be relied on. The first of these is to certain testimony, and the instruction to the jury thereon, relative to certain "cuts and fills" made in grading the roadway. It is contended that these were not a proper element of damage, and should have been excluded. The view of this question taken by the trial judge is thus expressed in the instruction: "In considering the damages other than the value of the land actually taken the...
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