Omaha Southern Railway Company v. Todd
| Decision Date | 21 March 1894 |
| Docket Number | 5443 |
| Citation | 58 N.W. 289,39 Neb. 818 |
| Parties | OMAHA SOUTHERN RAILWAY COMPANY v. LEVI G. TODD |
| Court | Nebraska Supreme Court |
ERROR from the district court of Otoe county. Tried below before HALL, J.
AFFIRMED.
M. L Hayward and A. N. Sullivan, for plaintiff in error:
One of the parties to a suit cannot appeal in his own behalf and ignore his associates. (Wolf v. Murphy, 21 Neb. 472; Hendrickson v. Sullivan, 28 Neb. 790; Curten v Atkinson, 29 Neb. 612.)
The change of venue granted was an abuse of discretion prejudicial to the rights of plaintiff in error. (Hudson v. Hanson, 75 Ill. 198; Moss v. Johnson, 22 Ill. 640; Kelly v. Downs, 29 Ill. 74; Northeastern N. R. Co. v. Frazier, 25 Neb. 42.)
The court erred in refusing to strike out the answer of the witness in reference to the trouble with the connections to the spring of water. (State Historical Association v City of Lincoln, 14 Neb. 336; High v. Merchants Bank, 6 Neb. 155; Cropsey v. Averill, 8 Neb. 151; Dunbier v. Day, 12 Neb. 596; Harrison v. Baker, 15 Neb. 43; First Nat. Bank v. Carson, 30 Neb. 108.)
The refusal to permit the land-owner to testify on cross-examination as to what he paid for the land in controversy, or a portion of it, was error. (Kansas City, W. & N. W. R. Co. v. Fisher, 30 P. [Kan.], 111.)
The circumstance that the live stock of the land-owner will be liable to injury from operating the road should not be considered. (Pennsylvania & N. Y. R. & C. Co. v. Bunnell, 81 Pa. St., 414; Baltimore P. & C. R. Co. v. Lansing, 52 Ind. 229; Baltimore P. & C. R. Co. v. Johnson, 59 Ind. 188; Alabama & F. R. Co. v. Burkett, 46 Ala. 569; Fremont, E. & M. V. R. Co. v. Lamb, 11 Neb. 592.)
It was error to refuse testimony to show that no farm such as that owned by plaintiff was ever sold in Cass county as high as thirty dollars per acre. (Markell v. Moudy, 13 Neb. 322.)
E. H. Wooley and Beeson & Root, contra:
Damages caused by the location of a railroad are to be considered as affecting the whole farm through which the road passes.
The refusal to permit the land-owner to testify on cross-examination as to what he paid for a portion of the land in controversy was proper. (Dietrichs v. Lincoln & N. R. Co., 12 Neb. 225.)
No testimony was introduced for the purpose of recovering damages in advance for stock that might be injured or killed on the road. The liability of stock to be killed would have a tendency to depreciate the value of the land. (Burlington & M. R. R. Co. v. Schluntz, 14 Neb. 421; Blesch v. Chicago & N. W. R. Co., 48 Wis. 168.)
The facts are stated in the opinion.
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 with 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 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," etc. 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: "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 land-owner 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. (Rockford, R. I. & St. L. R. Co. v. McKinley, 64 Ill. 338; Chicago, K. & N. R. R. Co. v. Wiebe, 25 Neb. 542, 41 N.W. 297; Robbins v. Milwaukee & H. R. Co., 6 Wis. 636; Grand Rapids & I. R. 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. (Omaha Southern R. Co. v. Beeson, 36 Neb. 361.)
4. Because the defendant in error was permitted on the trial to answer the following question: "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 this question to be answered. (Mills, Eminent Domain, sec. 162, and cases there cited.)
5. It appears from the evidence that there was a spring of water upon the farm of the defendant in error and he had, by means of pipes and a hydraulic ram, conducted the water from this spring to his feed lots; and that the railway company's right of way interfered with this spring or the flow of water from it to the feed lots of the defendant in error. On the trial the defendant in error testified that prior to the construction of the road there was sufficient water from the spring to run the hydraulic ram; that since the construction of the road the ram would only run about five or six hours, and then stop. He was then asked: "Then what is necessary to start it?" Answer: It is now insisted that the court erred in overruling the motion of the railway company to strike out the answer of the witness to the above question. We think the answer of the witness was not responsive to the question, but we are unable to see how the plaintiff in error was prejudiced by it.
6. The substance of the next error assigned is that on the trial the defendant in error was permitted to testify to the damages resulting to his entire farm through which the railroad was constructed, the contention of the plaintiff in error being that Todd's damages, outside of the value of the land actually taken, should have been confined to the tracts through which the...
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