Webber v. City of Scottsbluff
| Decision Date | 03 December 1948 |
| Docket Number | 32440. |
| Citation | 35 N.W.2d 110,150 Neb. 446 |
| Parties | WEBBER et al. v. CITY OF SCOTTSBLUFF. |
| Court | Nebraska Supreme Court |
Appeal from District Court, Scotts Bluff County; Perry Judge.
Syllabus by the Court.
1. In a law action where the case is presented to the jury under proper instructions, a verdict based upon conflicting evidence will not be set aside on appeal unless clearly wrong.
2. It is the province of the jury to harmonize the testimony insofar as that is possible and, in case of conflict, to decide as to the weight to be given the testimony of the various witnesses.
3. Instructions not complained of in such a way as to be reviewable in this court will be taken as the law of the case, and if, when tested by such instructions, the verdict is not vulnerable to the objections lodged against it, the assignments will not be sustained.
4. It is presumed a jury followed the instructions given in arriving at its verdict and, unless it affirmatively appears to the contrary, it cannot be said that such instructions were disregarded.
5. The proper procedure in a condemnation action, where an appeal is taken from the award and the case is tried to a jury in the district court, is for the court to reserve the question of interest for its determination and direct the jury not to include it in their verdict.
6. Instructions should submit to a jury only issues of fact supported by evidence.
7. It is not error for the trial court to reject an offer of proof not within the limits of the question on which the offer is based.
Morrow Lovell & Bulger, of Scottsbluff, for appellant.
James H. Anderson and W. H. Kirwin, both of Scottsbluff, for appellees.
Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is an appeal from a judgment of the district court, based on a jury's verdict assessing the amount of damages to be paid for land taken by eminent domain. We affirm the judgment of the district court.
The land involved was owned by Jack and Mamie Webber, who herein will be called the plaintiffs. The City of Scottsbluff, the condemnor, will be herein referred to as the defendant.
The land of the plaintiffs, together with other land, was condemned for street purposes. Plaintiffs owned some 44 acres of land, adjoining the defendant on the southern and western boundaries of plaintiffs' land, but not within the defendant's corporate boundaries. The land taken was a strip 70 feet in width and 2007.8 feet in length, containing 3.25 acres and running north and south. Adjoining the land taken on the west and running north and south from the south boundary there was a dedicated road 30 feet in width and 1277 feet in length. The condemnation widened and extended this road or street.
Plaintiffs' land on the south faced 27th street which, in the area here involved, has been developed into a commercial and industrial section. At the time of the condemnation the land here involved was used for pasture purposes. It was improved with a picket fence along the west and south sides, within that a dike and irrigation lateral running north and south, and within that a woven wire fence 1400 feet long.
Appraisers were appointed and damages assessed. The plaintiffs appealed from the award, and trial was had in December 1947. The issue tried in the district court was the amount of damages sustained by plaintiffs. The jury fixed the damages at $6,463.25. From the judgment rendered thereon, plaintiffs appeal.
Plaintiffs' first two assignments are that the damages are inadequate and the verdict is not supported by, but is contrary to the evidence and the weight thereof.
Plaintiffs used several expert witnesses who testified as to the fair and reasonable market value of the land taken. With two exceptions, these witnesses gave their opinion as to the value by mentally dividing the land taken into two tracts, i. e., that part 70X300 feet at the south end of the land taken, and the remainder of the tract. Mr. Webber fixed the value of the south 300 feet at $25,000, four of plaintiffs' witnesses fixed it at $7,000, one witness at $6,300, and one at $4,200. One witness fixed the value of the first 200 feet from the south at $4,200. As to the remainder of the tract, plaintiff fixed the value at $18,900, one witness at $5,020, one at $4,500, one at $5,000 to $5,500, and one at $1,250 to $1,375. One fixed the value of the second 300 feet at $1,800. It is apparent that all these witnesses arrived at their opinion as to value on the basis of the south part being used for business purposes and the remainder of the land being platted and sold as city lots as a part of the other land owned by plaintiffs.
It does not appear that the value of the fences, dike, and lateral entered into the consideration of these witnesses in determining their opinions as to value.
Plaintiffs then offered proof that the cost of reconstruction of the lateral and dike on the land immediately to the east would be $2,044.20; that the cost of reconstruction of the two fences would be $1,820.38; and that a reasonable depreciation would be five percent a year. The fences were built in 1944-1945.
Defendant offered three expert witnesses to prove value. The first two had been appraisers of all the land taken by the condemnation proceedings, and fixed the value of the entire tract at $2,600, to which both in effect said should be added the cost of reconstructing the dike, and the removal and reconstruction of the fences. These witnesses testified that they gave consideration to the use of the land when taken, and to the fact that it was not within the defendant's corporate limits and also gave a speculative value based upon future business and residential uses. The third witness, a former county assessor, fixed the value of the south 300 feet at $2,800, and the remainder at $275 or $100 an acre.
The rules are: 'In a law action where the case is presented to the jury under proper instructions, a verdict based upon conflicting evidence will not be set aside on appeal unless clearly wrong.' Scott v. New England Mutual Life Ins. Co., 128 Neb. 867, 260 N.W. 377. 'It is the province of the jury to harmonize the testimony insofar as that is possible and, in case of conflict, to decide as to the weight to be given the testimony of the various witnesses.' Arman v. Structiform Engineering Co., 147 Neb. 658, 24 N.W.2d 723, 724.
The trial court instructed the jury that it should find for the plaintiffs in some amount; that the verdict should show the amount of damages the jury found from the evidence the plaintiffs suffered by reason of the appropriation of the land by the defendant; and that the '* * * value of the fences thereon and the cost of reconstruction of the lateral and dike on the 17th day of June, 1947, should be taken into consideration and allowed as a part of the damages claimed by plaintiffs.' The giving of these instructions is not assigned as error. Plaintiffs requested the giving of such an instruction so far as the value of the fences was concerned.
The rule is that instructions not complained of in such a way as to be reviewable in this court will be taken as the law of the case, and if, when tested by such instructions, the verdict is not vulnerable to the objections lodged against it, the assignments will not be sustained. Skinner v. Wilson, 76 Neb. 445, 107 N.W. 771.
It also is the rule that it is presumed a jury followed the instructions given in arriving at its verdict and, unless it affirmatively appears to the contrary, it cannot be said that such instructions were disregarded. Missouri Pacific Ry. Co. v. Fox, 60 Neb. 531, 83 N.W. 744.
The evidence here then is that the value of the fences was $1,820.38. Deducting depreciation at five percent a year for the two full years elapsing between the time of construction and the date of the taking, the jury might well have arrived at the figure of $1,638.35 as the then value of the fences. The cost of reconstruction of the dike and the lateral is fixed in the evidence at $2,044.20. Consistent with the instructions and the evidence, the jury could then have accepted the opinion of defendant's two witnesses that the value of the land taken was $2,600. The three items total $6,282.55.
The trial court also instructed the jury that to the amount determined as damages suffered, it should allow and add interest at the rate of six percent per annum from June 17, 1947, to December 10, 1947. We have held that 'The proper procedure in a condemnation action, where an appeal is taken from the award and the case is tried to a jury in the district court, is for the court to reserve the question of interest for its determination and direct the jury not to include it in their verdict.' Langdon v. Loup River Public Power...
To continue reading
Request your trial