Werthman v. Mason City & Ft. D. R. Co.

• Decision Date: 10 April 1905
• Citation: 103 N.W. 135,128 Iowa 135
• Court: Iowa Supreme Court
• Parties: WERTHMAN ET AL. v. MASON CITY & FT. D. R. CO.

128 Iowa 135

103 N.W. 135

WERTHMAN ET AL.

v.MASON CITY & FT. D. R. CO.

Supreme Court of Iowa.

April 10, 1905.

Appeal from District Court, Carroll County; Z. A. Church and S. M. Elwood, Judges.

Ad quod damnum proceedings, originally instituted by the defendant to condemn certain land belonging to plaintiff Simons for railway purposes. Werthman was made a party because he held a lease for the land. The sheriff's jury did not allow Werthman anything, and he appealed to the district court. Upon a trial in that court he was awarded a verdict of $24. He immediately moved for a new trial, and his motion was sustained. Before the case went to trial, defendant moved to dismiss the appeal from the action of the sheriff's jury and to affirm its finding. This motion was overruled, and exception taken. From the several rulings of the trial court, defendant appeals. Affirmed.Lee & Robb and Healy Bros. & Kelleher, for appellant.

Salinger & Korte, for appellees.

DEEMER, J.

Many, if not most, of the questions raised on this appeal are determined adversely to appellant in Simons et al. v. the Mason City & Ft. Dodge Railroad (decided at the present term) 103 N. W. 129. These points need not be again considered, as the facts bearing thereon are practically the same in each case.

The only questions not common to the two appeals we shall now proceed to determine. They relate exclusively to the ruling on plaintiff's motion for a new trial. This motion was bottomed on five grounds: (1) That the verdict was contrary to the evidence; (2) that it was not supported by the evidence; (3) that it was not supported by any theory of the evidence; (4) that it was contrary to the law and the instructions given by the trial court; and (5) that it was not based on any theory of the instructions given, and was contrary to the rule of law given in the instructions. Werthman was Simons' tenant, holding a lease for the entire tract of 134 acres for the term of one year from and after March 1, 1902. By the terms of that lease the lessee was to pay as rent for the use of the land two-fifths of the grain grown upon the premises during the year and two-fifths of the hay to be taken therefrom. The railway entered upon the premises and commenced its condemnation proceedings March 5, 1902. It took practically all the hay land--34 or more acres. During the trial plaintiff's counsel stated that he should not claim damages to more than 123 acres of land leased to his client. The trial court instructed the jury that: “If you find that plaintiff has been damaged by the railway company, you will give or allow him proper damages therefor. In fixing the amount of damages you will take into consideration the net value of the annual use during the term of this lease; that is, the net value of the annual use of the premises before the defendant appropriated the right of way and took the land and what it was worth afterwards. You will take into consideration the probable net value of the products of the crops of the land before the taking of the right of way and after taking. Or, to state it in another way, you will take into consideration the probable amount of injury to the crops occasioned by the taking of the land and right...