Omaha & R. V. R. Co. v. Moschel

• Decision Date: 08 November 1893
• Court: Nebraska Supreme Court
• Parties: OMAHA & R. V. R. CO. v. MOSCHEL.

38 Neb. 281

56 N.W. 875

OMAHA & R. V. R. CO.

v.MOSCHEL.

Supreme Court of Nebraska.

Nov. 8, 1893.

Syllabus by the Court.

1. The permitting or refusing amendments to pleadings is a matter within the sound judicial discretion of the trial court; and unless it is made to clearly appear that he has abused this discretion, and a party has thereby been deprived of the opportunity to make his case or defense, the supreme court will not interfere.

2. It is not necessarily a fatal objection to a proposed amendment that it is in fact an additional defense, or an additional cause of action.

3. An action against a railroad company for damages to plaintiff's real estate, caused by the railroad company's building its tracks and operating its road across the street and on a lot lying next to plaintiff's property, must be brought within four years of the date of the construction of such railroad.

4. Where a railroad company, in 1880, built its railroad track and side tracks across a street and on a lot (owned by it) lying next to plaintiff's property, and more than four years thereafter plaintiff brought suit against the railroad company for the depreciation in value of his lot, caused by the building of such railroad and its subsequent operation, and for subsequently building and operating additional tracks across said street and lot, held, (1) that plaintiff in no event could recover for any depreciation in the value of his property by reason of any acts of the railroad company either in matters of construction or operation, the habitual doing or the commencement of the doing of which acts was at a date more than four years prior to the date of suit brought; (2) that the plaintiff could, and if he did or did not, within four years after the date of building of said original railroad on said lot and across said street adjacent to his property, bring suit for damages for the depreciation in value of his premises, caused by such railroad construction and operation, then every element of damages, past and future, that was or would have been properly admissible in that suit, either in matters of construction or operation, must be excluded from consideration in this case.

Commissioners' decision. Error to district court, Gage county; Appelget, Judge.

Action by Charles Moschel against the Omaha & Republican Valley Railroad Company. Plaintiff had judgment, and defendant brings error. Reversed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Rickards & Prout, for defendant in error.

RAGAN, C.

On the 5th day of December, 1889, Charles Moschel sued the Omaha & Republican Valley Railroad Company (hereinafter designated as the “Railroad Company”) in the district court of Gage county alleging his ownership of lot 6 in the city of Beatrice. That said lot had a frontage of 50 feet on Court street, the principal street of said city. That about January 7, 1880, the railroad company constructed, and has since maintained, its line of road upon lot 5, adjacent to said lot 6, and had extended its road and side tracks upon and across said Court street, making a double track upon said lot 5, and said street in front of Moschel's building, situate on said lot 6. (Lot 5 is immediately west of lot 6, and both front south on Court street, and the railroad tracks mentioned extend north and south across Court street, and upon lot 5.) That ever since the building of said railroad the railroad company had occupied the street in front of said place of business of Moschel and said lot 5 with its tracks and side tracks, made up its trains thereon, and interfered with the travel on said street; “and that particularly within the four years last past, and immediately preceding the commencement of this action, said railroad company had willfully, maliciously, and wantonly, with the intent to injure plaintiff in his business and property, caused its engines and cars to be left alongside of said property of Moschel, without reason or necessity therefor, and for the purpose of injuring plaintiff in the full, free, and complete use and enjoyment of his property. That said property of Moschel's had been greatly damaged, and the free use and occupation of said property interfered with, and Moschel had been compelled to abandon the doing of business on said lot 6, and at a great expense to purchase other property on which to conduct his business. That said lot 6, by reason of the premises, had been greatly injured and depreciated in value for any purpose whatsoever, and Moschel prayed judgment for damages.” The answer of the railroad company admitted the construction, maintenance, and operation of its double-track railway across Court street and upon lot 5 since 1880, and alleged that it had, for due compensation paid, procured the right of way over said lot 5 before occupying it, and specifically denied all others allegations of Moschel's petition. After the evidence was all in, the railroad company requested permission to file an amendment to its answer, setting up the statute of limitations, which the court granted, and thereupon the railroad company filed the following “amendment,” in fact, an additional defense: “The defendant, in further answer to the petition of the plaintiff, * * * alleges that the cause of action stated in the petition did not accrue within four years next preceding this action.” Thereupon Moschel, by leave of the court, amended his petition by filing what his counsel called an “addenda” thereto, in words and figures as follows: “Comes now the plaintiff for their ‘addenda’ to the * * * petition herein filed, * * * and * * * says that...