Ne. Neb. Ry. Co. v. Frazier

• Decision Date: 28 November 1888
• Citation: 40 N.W. 604,25 Neb. 42
• Parties: NORTHEASTERN NEB. RY. CO. v. FRAZIER ET AL.
• Court: Nebraska Supreme Court

25 Neb. 42

40 N.W. 604

NORTHEASTERN NEB. RY. CO.

v.FRAZIER ET AL.

Supreme Court of Nebraska.

November 28, 1888.

Syllabus by the Court.

Where the county commissioners select 60 names of persons proportionately from the several precincts of the county from which the petit jurors are to be drawn by the clerk of the court, and the sheriff, etc., a motion to quash the panel, on the ground that one of the commissioners had an action pending in court to be determined by a jury, should be overruled, in the absence of a showing of partiality or unfairness, or that any of the persons thus selected were favorable to such commissioner.

An application for a change of venue in a civil action should be denied, unless it is made to appear to the court that a fair and impartial trial cannot be had in the county where the action is pending. The fact that there are numerous persons in the county that are biased and prejudiced against a party to a suit will not justify a court in granting a change of venue on the application of such party, if it appears that a fair and impartial jury can be had, and a fair trial had therein.

Where the interest in certain lands across which a right of way is sought by a railway company is in two persons, and before the appraisement of damages takes place, but after the filing of the petition, one of such persons acquires the interest of the other, and the award is made to the former, he will be entitled to the full amount thereof.

Where a number of tracts of land, as described by the government surveys, are used together as one farm or body of land, in determining the owners' damage by reason of the location of a railway across one or more of the tracts, the injury to the whole farm or body of land, should be considered.

The question of the amount of damages sustained by a land-owner for a right of way condemned across his land is peculiarly of a local nature, proper to be determined by a jury of the county; and the supreme court, ordinarily, will not vacate or modify the verdict, if it is based upon the testimony in the case.

It is not error for the court to refuse to give an instruction asked on behalf of the defendant, when it has already given the same in substance in its own instruction.

Error to district court, Wayne county; POWERS, Judge.

Action by William Frazier et al. to recover damages for land condemned for right of way for the Northeastern Nebraska Railway Company. Judgment in favor of plaintiffs, and defendant brings error.H. C. Brome, for plaintiff in error.

Northrop & Welch, for defendants in error.

MAXWELL, J.

On the 11th day of June, 1886, plaintiff in error filed its petition in the county court of Wayne county for the appointment of commissioners to assess damages occasioned by the appropriation of lands in Wayne county for the right of way of said railroad. The petition showed the location of such railroad over and across the S. 1/2 of the N. W. 1/4, and the N. E. 1/4 of the S. W. 1/4, of section 6, township 26, range 3 E., of the sixth principal meridian; the legal title to this tract being, at the time of the filing of this petition, in the defendants in error William Frazier and James Frazier.The petition also showed the location of such railroad over and across the N. 1/2 of the N. E. 1/4 of section 14, township 27, range 1 E.,--being an 80-acre tract; the title to this land, at the time of the filing of the petition, being in the state of Nebraska, the defendants in error having at that time simply a lease-hold interest. The petition also showed the location of the railroad over and across the S. W. 1/4 of section 11, township 27, range 1 E.,--this also being school land, defendants in error being lessees only; all of said tracts of land, except the S. 1/2 of the N. W. 1/4, and the N. E. 1/4 of the S. W. 1/4, of section 6, township 26, range 3 E., being wild, uncultivated prairie land. Notice having been given as provided by law, and commissioners having been appointed on the 23d day of June, 1886, the commissioners reported to the county judge their assessment of damages with respect to the N. 1/2 of the N. E. 1/4 of section 14, township 27, range 1 E., being one of the tracts above referred to, at $201.27; and on the 25th day of that month the commissioners assessed the damages occasioned by the location of such line of railroad over and across the S. 1/2 of the N. W. 1/4, and the N. 1/2 of the S. W. 1/4 of section 6, in township 26 N. of range 3 E., at $450; and on the 28th day of June of that year the commissioners assessed the damages upon another tract, to-wit, the S. W. 1/4 of section 11, township 27, range 1 E., at $166.82. From these several awards of damages both parties appealed to the district court of Wayne county. These appeals were afterwards, by consent of parties, consolidated, and pleadings filed. Up to the time of the trial the record now presented consisted of two separate causes; but at the time of the trial, it appearing that these two separate causes were between the same parties, they were consolidated, and, by agreement of parties, tried as one case. When petitions were filed in these causes, the land-owners, who are defendants in error in this court, claimed to be the owners of certain other lands lying contiguous to the tracts referred to, and across which the railroad had been located, and claimed damages to such other tracts by reason of the location of the line of railroad across the tracts above referred to. The defendant railroad company, by motion in the district court, sought to require the land-owners to limit their claim for damages in the district court to the same lands for which damage had been claimed and allowed by the commissioners. This motion was overruled, to which ruling the defendant below excepted. Plaintiffs, by their amended petition, filed in the district court, allege that on the 11th day of June, 1886, being the date of the filing of the petition of the railroad company in the condemnation proceedings in the county court, plaintiffs were in possession of that portion of the premises known as school land, as lessees from the state of Nebraska. They further say that “on or about the 6th day of June, 1886, these plaintiffs applied to have the aforesaid lands appraised for the purpose of sale; whereupon the same were appraised as by law provided, plaintiff's lease therefor surrendered, and the same purchased by the said William Frazier and James A. Frazier, and plaintiffs now are the equitable owners thereof.” The defendant railroad company, by answer, denied the title of plaintiffs to the land in question,--alleging the legal title to be in the state of Nebraska; and claimed a compliance with the laws of the state of Nebraska with respect to the procedure necessary to obtain the right of way across land belonging to the state. To these answers no replies were filed, and upon the issues thus made the cause was tried. At the trial the defendant filed a motion to quash the regular panel of the petit jury for that term of court, so far as this case was concerned, for the reason that William Frazier, one of the plaintiffs in this case, was a county commissioner of Wayne county, and as such county commissioner had participated in the selection of the 60 names, from whom the 24 members of the regular panel of the petit jurors were selected. This motion was supported by an affidavit and duly-authenticated transcript of the proceedings of the board of county commissioners with reference to the selection of said 60 names, the facts not being disputed; which motion was overruled, to which ruling the railroad at the time excepted. Thereupon a motion was filed by the railroad company for a change of venue; this motion being supported by affidavits, and affidavits being filed on the part of plaintiffs against said motion. This motion was overruled, to which ruling the railroad company duly excepted. The jury returned a verdict in favor of plaintiffs, and against the railroad company, for $2,200.87, as follows:

“We assess the damages to which said plaintiffs are entitled by reason of the location, operation, and construction of said defendant railroad over and across the following tracts of land: The S. W. 1/4 and the S. 1/2 of N. W. 1/4 of sec. 6, Tp. 26, R. 3, Wayne county, Neb.,--at the sum of $1,090.31. We assess the damages to which said plaintiffs are entitled by reason of the location, construction, and operations of the defendant's railroad over and across the following tracts of land, to-wit: The N. E. 1/4 of sec. 24, and the E. 1/2 of sec. 14, and N. E. 1/4 of sec. 23, all in T. twenty-seven, R. 1, in Wayne county, Neb.,--at the sum of $603.46. We assess the damages to which said plaintiffs are entitled by reason of the location, construction, and operation of defendant's railroad over and across the following tract of land: E. 1/2 of sec. 15, S. E. 1/4 of sec. 10, and S. W. 1/4 of sec. 11, all in Tp. 27, R. 1, in Wayne county, Neb.,--at the sum of $507.10.

E. J. SHERMAN, Foreman.”

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