Sioux City, etc., R. Co. v. Weimer

• Decision Date: 26 August 1884
• Citation: Sioux City, etc., R. Co. v. Weimer, 16 Neb. 272, 20 N.W. 349 (Neb. 1884)
• Parties: SIOUX CITY, ETC., R. CO. v. WEIMER.
• Court: Nebraska Supreme Court

16 Neb. 272

20 N.W. 349

SIOUX CITY, ETC., R. CO.

v.WEIMER.

Supreme Court of Nebraska.

Filed August 26, 1884.

Error from Washington county.L. W. Osborn and Joy, Wright & Hudson, for plaintiff.

Jesse T. Davis, for defendant.

COBB, C. J.

This was an appeal to the district court from the award of damages for the taking of a right of way for railroad purposes across the land of appellee. Three and forty-nine one-hundredths acres of land were taken, and the commissioners allowed as damages the sum of $349. On appeal by the railroad company and a trial to a jury, the verdict was for $400. The railroad company brings the cause to this court on error.

Counsel for plaintiff in error makes these points:

“(1) That the verdict is contrary to law, and is not sustained by the evidence; (2) the court erred in refusing to give instruction No. 1 asked by plaintiff; (3) the admission of improper testimony.” These points will be considered in the inverse order in which they are above stated.

It appears, from the bill of exceptions, that the first witness called was the engineer who laid out the line of railroad across the land in question. He presented a map, which is attached to the bill of exceptions. This map shows the railroad cutting off the south-east corner of defendant's land; or, rather, the right of way covering the corner, as defendant's land does not, any of it, extend across the right of way. It also shows a public highway crossing the railroad track nearly at right angles, near the south-east corner of defendant's land, and entering the right of way at a point where the north-west line of the right of way crosses the south line of defendant's land. The witness stated that the depth of the cut of the road-bed at that point would be 37 feet. Witnesses were called and examined by the defendant, over the objection of the plaintiff, as to the situation of the plaintiff's land, as to abrupt rises and descents, in connection with which the necessary cutting down and grading of the bed of the highway would render a portion of said land inaccessible to the said highway. Plaintiff's counsel contends that this testimony should have been excluded, because, they say, that “if the said cut is made as suggested by the questions, the change in highway, if made, will be made entirely outside the right of way taken. The supposed inconvenience to defendant, by reason of increase of distance in travel, arises or will arise in her passing from other portions of her land not taken for right of way. The questions are based upon suppositions as to what may or may not occur in the future. If they occur, it will be a change in the highway by others than the company, for which the company is not answerable to the defendant.”

The railroad company, having acquired the right of way over defendant's land, must be presumed to intend to cut down the road-bed according to the plan and profile as testified to by its engineer; in which case, as I understand the law, it would be its duty to also cut down and grade the highway so as to give it a proper gradient for the passage of vehicles. And if, by reason of the peculiar situation and topography of her land, such cutting down of the highway would be addditional damage to the land, I know of no reason why it should not be allowed to her; but, on the contrary, I think that the provisions of the constitution, as well as considerations of justice, would give it to her. Hence any proper testimony was admissible for the purpose of enabling the jury to ascertain the fact and extent of such damage.

Complaint is also made that the court, upon the trial below, permitted witnesses to testify as to the market value of the land taken for right of way, without showing themselves competent. In the case of Burlington & M. R. R. Co. v. Schluntz, 14 Neb. 421, S. C. 16 N. W. REP. 439, the law is thus stated in the syllabus by Chief Justice LAKE: “The owner of land taken for right of way by a railroad company, having resided upon and improved it for several years, who swears that he knows what it is worth, is a competent witness on the question of its value. So, too, are other persons who have resided for several years in the immediate neighborhood of the land, and who seem upon examination to be well informed of its situation, condition, and value.” Tested by the standard thus laid down, the witnesses objected to were entirely competent.

2. Upon the trial, the plaintiff prayed the court to give the following instruction in charge to the jury: “No. 1. The railroad company, in condemning the right of way over the land of the claimant, acquire no right to change or interfere with the public highway, and the claimant can recover no damages, based upon any imaginary injury, based upon a change of grade in the highway.” From what is said above in considering the third point, it can scarcely be necessary to say that this instruction was properly refused. Leavingout the word “imaginary,” the very reverse of the proposition there stated is believed to be the law. The railroad company did acquire the right to interfere with the highway, and thereby assumed the duty of restoring the highway to a condition of usefulness to the public at its own expense, and not in any degree at the expense of the defendant.

“(1) That the verdict is contrary to law, and is not sustained by the evidence.” There is a sharp conflict of evidence as to the value of defendant's land actually...