Omaha & Republican Valley Railroad Company v. Moschel
| Decision Date | 08 November 1893 |
| Docket Number | 4645 |
| Citation | 56 N.W. 875,38 Neb. 281 |
| Parties | OMAHA & REPUBLICAN VALLEY RAILROAD COMPANY v. CHARLES MOSCHEL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Gage county. Tried below before APPELGET, J.
REVERSED AND REMANDED.
J. M Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.
Rickards & Prout, contra.
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 fifty feet on Court street, the principal street of said city; that about January 7, 1880, the railroad company constructed, and had 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 railroads 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 wilfully, 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 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 other 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 before the commencement of 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 on or about the 1st day of October, 1886, the defendant constructed a second or new main line over and across the said lot 5, and only a few feet distant from the line constructed by the defendant in the early part of 1880, so that said new main line, and the operation thereof, extended along the east side and in close proximity to plaintiff's said premises, and over and across Court street, and that by reason of which said new main line of the defendant, the said Court street in front of plaintiff's premises was still blockaded, the full use thereof destroyed, the travel thereon impeded, whereby the value of said plaintiff's premises was still further reduced, so that the same was not worth within $ 1,200 of what they were immediately preceding the construction and operation of said new main line as herein described."
The railroad company excepted to the ruling of the court allowing this amendment. Moschel had a verdict and judgment, and the railroad company brings the case here.
The first error alleged is the ruling of the court in permitting Moschel to amend his petition by filing the so-called "addenda."
Moschel's petition contained two causes of action, though not separately stated, and numbered:
1. The depreciation in the value of lot 6 by the construction, in 1880, by the railroad company, and its operation and maintenance since, on lot 5, and across Court street, of its railroad and side tracks.
2. That within the four years immediately preceding the bringing...
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