Republican Valley Railroad Co. v. Hayes

Decision Date30 December 1882
Citation14 N.W. 521,13 Neb. 489
CourtNebraska Supreme Court

ERROR to the district court for Franklin county. Tried below before GASLIN, J.


T. M Marquett and J. W. Deweese, for plaintiff in error.

George W. Sheppard and W. J. Lamb, for defendant in error.



This case is brought here on certain alleged errors in the assessment of damages caused by the location of the plaintiff's railroad across the defendant's land. The errors relied upon in the plaintiff's brief are First. As to the nature of the evidence introduced on the question of damages. Second. That the court erred in refusing to permit the plaintiff to show that the defendant had no title to the land in question. Third. That the defendant and his witnesses were permitted to magnify the amount of damages by reason of the plaintiff failing to put in certain crossings. Fourth. That the defendant and his witnesses were permitted to show the damages sustained on account of the use or purpose of the land.

It appears from the record that in October, 1878, the plaintiff by its agent J. W. Heisey, filed its petition in the county court of Franklin county, alleging that certain parties refused to grant the right of way over their land, and asking that six commissioners be appointed to appraise the damages. The commissioners were appointed, and on the twenty-third day of January, 1879, reported the damages sustained by the defendant by reason of the location of said road across lots 1, 2, and 3, in section one, town one, range 15 west, to be the sum of $ 203. The defendant appealed to the district court, where a verdict was rendered in his favor for $ 406.

The first objection is as to the mode of proof of damages. All of the witnesses that testified as to the amount of damages, were permitted to testify without objection as to what in their opinion was the damage sustained by the defendant. And this is true, not only of the witnesses called by the defendant, but also by the plaintiff. On cross-examination they were asked in what manner they apportioned the damages, and testified freely without objection as to the mode. This being the case, error cannot be assigned upon the admission of such testimony.

Second. The railroad company having applied for appraisers and condemned the land as the defendant's, can it be permitted on appeal, where no issue of want of title is tendered, to prove a want of ownership? We think not. Where the only question at issue is the...

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