Omaha Belt Ry. Co. v. Johnson

• Decision Date: 31 October 1888
• Citation: 40 N.W. 134,24 Neb. 707
• Parties: OMAHA BELT RY. CO. v. JOHNSON ET AL.
• Court: Nebraska Supreme Court

24 Neb. 707

40 N.W. 134

OMAHA BELT RY. CO.

v.JOHNSON ET AL.

Supreme Court of Nebraska.

October 31, 1888.

Syllabus by the Court.

Where real estate has been condemned for public use, and damages awarded to the land-owner by a jury, and the only error assigned in the supreme court is that the verdict is excessive, the court ordinarily will not vacate or modify the verdict if it is based on the testimony in the case.

The question of the amount of damages sustained by the 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.

Error to district court, Douglas county; HOPEWELL, Judge.

Judgment was rendered in the district court against the Omaha Belt Railway Company, awarding damages to Swan G. Johnson and another for the condemnation of certain real estate. The railway company bring error, claiming that the award is excessive.George E. Pritchett, for plaintiff in error.

J. J. O'Connor and C. A. Baldwin, for defendants in error.

MAXWELL, J.

The plaintiff condemned certain real estate of the defendants situated in North Omaha. The strip condemned was 75 feet in width by 107 1/2 feet in length; being part of the defendants' brick-yard. An appeal from the award of damages was taken to the district court of Douglas county, where, on the trial, the jury returned a verdict for $1,000 principal, and $107.89 interest. A motion for a new trial having been overruled, judgment was entered on the verdict. The error relied upon in this court is that the verdict is against the weight of evidence,--in other words, is excessive. The testimony as to the value of the land taken varies from a few hundred dollars to $1,500. It appears that the land was used by the defendants as a part of a brick-yard; that it had been leveled up and fitted for that purpose at a considerable expense; that they possessed an abundance of clay for the manufacture of bricks, close at hand, and that a pipe connected with the city waterworks extended into their yard for their use. Upon these facts, the question of damages was properly one for a jury, and, where the verdict is based on the evidence, this court cannot ordinarily say that the jury should have adopted the lowest instead of the highest estimate. The question here presented was before the court in Clarke v. Railroad Co., 23 Neb. 616, 37 N. W. Rep. 484, where it is said “that the question of the value of real estate, or damages sustained by a...