Republican Val. R. Co. v. Fink

• Decision Date: 31 December 1889
• Citation: 44 N.W. 434,28 Neb. 397
• Parties: REPUBLICAN VAL. R. CO. v. FINK.
• Court: Nebraska Supreme Court

28 Neb. 397

44 N.W. 434

REPUBLICAN VAL. R. CO.

v.FINK.

Supreme Court of Nebraska.

Dec. 31, 1889.

Syllabus by the Court.

1. In an action of trespass against a railway company, for building a railroad over the plaintiff's land without condemning a right of way, the railway company, among other things, pleaded, as a defense, the previous condemnation of the right of way, and the right to use the same. Held, that the issues made by the pleadings raised the question of title to said land, and the action was properly brought in the district court.

2. Where a judgment is reversed in the supreme court and remanded, the plaintiff in error is entitled to recover his costs which accrue in said court.

Error from district court, Gage county; BROADY, Judge.Marquett & Deweese and Hazlett & Bates, for plaintiff in error.

Pemberton & Bush, for defendant in error.

MAXWELL, J.

In 1880 the plaintiff was constructing a railroad from the town of Wymore, westwardly, and located its line over a portion of the defendant's land. The defendant was a non-resident of the state, and the plaintiff, without taking the necessary steps to condemn the defendant's land, by failing to publish the proper notice, built its road across the same. The defendant thereupon brought an action of trespass, and recovered judgment. Both parties in that action seem to have proved the damages by the appropriation of the right of way. The case was brought into this court, and reversed for various reasons; among others, that the statutory mode of condemning the right of way was exclusive. Railroad Co. v. Fink, 18 Neb. 82, 24 N. W. Rep. 439. The cause was then remanded to the district court, where a second trial was had for the trespass alone, which resulted in a verdict for $75, upon which judgment was rendered. Proceedings were also had to condemn the right of way, and that question seems to have been adjudicated, and is not in this case. The court, on rendering judgment in the trespass case, also rendered judgment against the railroad company for all the costs in the case, including those in the supreme court.

The only question before us now is the correctness of the ruling of the district court in awarding the costs. To determine this matter it will be necessary to consider the pleadings in the case. The petition is as follows: “Louis Fink, plaintiff in the above-entitled action, complains of the defendant, and for cause of action says: That heretofore, to-wit, at the time hereinafter mentioned, the defendant was and still is a corporation, duly organized under the laws of the state of Nebraska, and that, before and at the time of committing the injury hereinafter complained of, the plaintiff was the owner and was possessed of the following described real estate, towit,the S. E. 1/4 of section 25, township 2 N. of range 6 E. of the sixth P. M., lying in the county of Gage, state of Nebraska. That the defendant, during the years A. D. 1880, 1881, and 1882, did unlawfully and with force and arms break, enter, occupy, and ever since has occupied a portion of the close of the said plaintiff, and then and there built and laid their line of railroad, which they have ever since operated, thereby converting to their own use 4 11-100 acres of land out of S. E. corner of the aforesaid described piece or parcel of land, whereby the plaintiff for and during all that time lost and was deprived of the use and benefit of said 4 11-100 acres of land. All of which is to the damage of the plaintiff in the sum of $1,000.” A supplemental petition was also filed, as follows: “The plaintiff alleges that since the filing of the former petition in the action, to which this is supplemental, the said defendant has wrongfully and unlawfully continued and still continues the several acts of trespass, charged against it in the former petition, on the lands and premises of the plaintiff, and described in said petition. Whereby the plaintiff, during all of which time, lost and was deprived of the beneficial use of said premises, to the damage of plaintiff in the sum of $1,000. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $1,000, in addition to the amount prayed for in the former petition, together with costs of suit.”...