Omaha S. Ry. Co. v. Todd

• Citation: 39 Neb. 818,58 N.W. 289
• Parties: OMAHA SOUTH. RY. CO. v. TODD.
• Decision Date: 21 March 1894
• Court: Supreme Court of Nebraska

39 Neb. 818

58 N.W. 289

OMAHA SOUTH. RY. CO.

v.TODD.

Supreme Court of Nebraska.

March 21, 1894.

Syllabus by the Court.

1. When it shall be made to appear to a district court that a fair and impartial trial of a cause cannot be had in the county where brought, then such court has not only the discretion, but it is its duty, to send the case to some adjoining county for trial.

2. The decision of a district court, made on conflicting evidence, that a fair and impartial trial of a case cannot be had in the county where brought, because of the bias and prejudice existing in such county against one of the parties to such suit, will not be disturbed by this court, if supported by competent evidence.

3. The damages to which a landowner is entitled by reason of the construction of a railway across his farm are (1) the actual value of the land taken, at the time of the taking, without diminution on account of any benefit or other set-off whatsoever; (2) the depreciation in value of the remainder of the farm, caused by the appropriation of a part thereof for railway purposes, and the construction and permanent operation and occupation of the railroad thereon, excluding general benefits.

4. In an inquiry whether, and how much, the part of a farm not taken for railroad right of way is depreciated in value by the appropriation of a part, evidence as to the size of the farm; the purpose for which it was used; the improvements thereon, and how located; the direction of the road across the farm; the cuts and fills made or to be made in the construction of the road; the width of the right of way; the height of embankments; the depth of ditches; the inconvenience in crossing the track from one part of the farm to another; the liability of stock being killed; the danger from fire from passing trains,--are all facts competent for the jury's consideration in determining the depreciation in value of the remainder of the farm. Railway Co. v. Teters, 68 Ill. 144; Mills, Em. Dom. §§ 162, 163,--followed.

5. Where a number of tracts of land, as described by government surveys, are used together as one farm or body of land, in determining the owner's 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. Railroad Co. v. Frazier, 40 N. W. 604, 25 Neb. 42; Robbins v. Railroad Co., 6 Wis. 610,--followed.

6. On the trial of an appeal from an award made by commissioners appointed to assess the damages sustained by a landowner by reason of the appropriation of a part of his land for railroad purposes, evidence as to what such landowner paid for the land is incompetent. Dietrichs v. Railroad Co., 10 N. W. 718, 12 Neb. 225.

Error to district court, Otoe county; Hall, Judge.

Condemnation proceedings by the Omaha Southern Railway Company against Levi G. Todd. From the award of damages, plaintiff brings error. Affirmed.M. L. Hayward and A. N. Sullivan, for plaintiff in error.

E. H. Wooley and Beeson & Root, for defendant in error.

RAGAN, C.

The Omaha Southern Railway Company, by proceedings duly instituted for that purpose in the county court of Cass county, condemned a right of way across the farm of Levi G. Todd. From the award of damages made to him by the commissioners appointed in said condemnation proceedings, Todd appealed to the district court of Cass county. On application of Todd, that court granted a change of venue in the case, and it was tried in the district court of Otoe county, where Todd recovered a judgment against the railway company for a greater sum than that awarded him by the commissioners in the condemnation proceedings. The railway company brings the case here for review, and assigns the following errors:

1. That Mrs. Levi G. Todd, the wife of the defendant in error, did not join him in the appeal taken by him from the award of the commissioners to the district court. This is not one of the errors assigned in the petition in error filed herein, and for that reason will not be further noticed.

2. That the district court of Cass county erred in granting the defendant in error a change of venue. Section 61 of the Code of Civil Procedure provides: “In all cases in which it shall be made to appear to the district court that a fair and impartial trial cannot be had in the county where the suit is pending * * * the court may, on application of either party change the place of trial to some adjoining county.” Whether Todd, by reason of the bias and prejudice existing against him in Cass county, was unable to have a fair and impartial hearing of this case in Cass county, was a question of fact for the determination of the judge who heard the application for a change of venue; and his finding on that question, like any other finding of fact, ought not to be disturbed by this court, if supported by competent evidence. If the statements made in the affidavits filed by Todd to obtain this change of venue were true, then there can be no question but that he was unable, by reason of the bias and prejudice existing against him in Cass county, to obtain a fair and impartial trial of this case therein. We certainly cannot say that the evidence offered for that purpose did not make it appear to the court that a fair and impartial trial of this case could not be had in Cass county. We do not think that the court was in error in granting the application to change the venue of this case, nor do we think that he abused his discretion. When it shall be made to appear to the court in which a case is pending that a fair and impartial trial cannot be had where the suit is pending, then the court has not only the discretion to send the case to some other county for trial, but it is its duty to do so.

3. That the defendant in error was permitted on the trial to testify as to the width of the right of way appropriated by the railway company through his farm. The defendant in error testified in his own behalf, and had been describing to the jury the course of the railroad across his land, saying that the road ran straight from the point where it entered the land until it came near a spring on his land. He was then asked this question: “Q. How wide is the right of way there?” to which the railroad company objected as follows: “Objected to, as the condemnation proceedings will tell that.” (Overruled and exception taken.) The reason assigned for the objection was of no force. Besides, the testimony was competent. The damages to which a landowner is entitled by reason of the construction of a railway across his farm are (1) the actual value of the land taken, at the time of the taking, without diminution on account of any benefit, advantage, or other set-off, whatsoever; (2) the depreciation in the value of the remainder of the tract of land caused by the appropriation of a part thereof for railway purposes, and the construction and permanent operation and occupation of the railroad thereon, excluding general benefits. Railroad Co. v. McKinley, 64 Ill. 339; Railroad Co. v. Wiebe, 25 Neb. 542, 41 N. W. 297; Robbins v. Railroad Co., 6 Wis. 610; Railroad Co. v. Horn, 41 Ind. 479. In an inquiry whether, and how much, the part of a farm not taken for railroad right of way is depreciated in value by the appropriation of a part, evidence as to the size of the farm; the purpose for which it is used; the improvements thereon, and how located; the direction of the road across the farm; the cuts and fills made or to be made in the construction of the road; the width of the right of way; the height of embankments; the depth of ditches; the inconvenience in crossing the track from one part of the farm to another; the liability of stock being killed; and danger from fire from passing trains,--are all facts competent for the jury's consideration in determining the depreciation in value of the remainder of the farm. Railway Co. v. Beeson, 36 Neb. 361, 54 N. W. 557.

4. Because the defendant in error was permitted on the trial to answer the following question: “Q. Is there any point north of your private crossing on your farm where stock can cross the railroad?” For the reasons just stated, there was no error in permitting...