Wiles v. Dep't of Pub. Works, 27548.
| Decision Date | 11 February 1931 |
| Docket Number | No. 27548.,27548. |
| Citation | 234 N.W. 918,120 Neb. 689 |
| Parties | WILES v. DEPARTMENT OF PUBLIC WORKS. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The compensation for land taken by right of eminent domain is measured by its market value at the time taken, and no evidence is admissible of its peculiar value for special reasons to its owner.
Syllabus by the Court.
The owner is not entitled to damages to the remainder of a large tract of land not taken under eminent domain, when damages to such land are of the same character as those suffered by all owners of land in that vicinity from the construction of a federal highway.
Syllabus by the Court.
The evidence carefully examined, and it is found that the verdict is excessive. The judgment thereon will be reversed in the event the plaintiff fails to file a remittitur.
Appeal from District Court, Cass County; Begley, Judge.
Action by James Elbert Wiles against the Department of Public Works of Nebraska. Judgment for plaintiff, and defendant appeals.
Affirmed conditionally.C. A. Sorensen, Atty. Gen., and L. Ross Newkirk, Asst. Atty. Gen., for appellant.
A. L. Tidd, of Plattsmouth, for appellee.
Heard before GOSS, C. J., and ROSE, DEAN, GOOD, EBERLY, DAY, and PAINE, JJ.
This is an appeal brought by the department of public works of the state of Nebraska, the defendant and appellant in this case, from a judgment of the district court for Cass county entered in favor of the plaintiff and appellee, James Elbert Wiles. Prior to paving a portion of federal highway No. 75, which is also called King of Trails highway, it was required by the government rules for road construction that, as a condition to the United States paying a portion of the cost of paving the road, two slightly rounded turns at the corners of the farm, the first of which turns is just two miles directly south of Plattsmouth, must be eliminated.
Proceedings were had by the state of Nebraska, acting through its department of public works, to condemn a right of way through this farm, and Frank P. Sheldon, Orin A. Davis and C. R. Troop were appointed appraisers by the county judge and awarded $8,000 damages to the appellee. From this award appellant appealed to the district court for Cass county; the appellee filed a petition asking $20,000 damages; and the jury returned a verdict in favor of the appellee for $9,000.
The only issue presented in this case is a question of fact as to the amount of damages suffered by the appellee by reason of the appropriation of this strip of ground across the southeast corner of his farm for a highway. The facts brought out at the trial show that the Wiles farm is approximately a square tract of land, nearly three-fourths of a mile on each side, from which the highway cuts off a tract of about 43 acres. This highway, where it crosses the farm, parallels in a general way for about three-fourths of its length a drainage ditch, which has for nearly 17 years run across the farm between the present location of the highway and the corner. The tract of land outside of the drainage ditch in the corner consists of 29.5 acres, having located thereon a tenant house, garage, sheds, and a good well. The tract of land lying between highway No. 75 and the drainage ditch, consisting of 12.1 acres, is the only acreage that could have been farmed jointly with the rest of the farm if the highway had not been constructed through the farm. The ditch is in places 9 1/2 feet deep and from 13 to 36 feet in width, the area of the land in the ditch being 1.4 acres, and the area of the federal highway is a trifle over 5 acres, making a total of only 40 acres of land directly affected by the new road. The main improvements upon this farm are located about one-half mile north of the highway, and the drive from the buildings connects to the public road north of the farm, directly away from federal highway No. 75 across the farm. These facts are clearly set out in a large map drawn by the highway department and which was the only exhibit introduced in evidence, and a small reproduction of which accompanies this decision.
The appellee testified that this was the main highway connecting Omaha and Kansas City, and that a car passed on this highway on an average of every four minutes, and that he had purchased the 120 acres of land, which includes the 48 acres cut off by the highway, only two years before the time of trial; that the remainder of the farm he had owned for 17 years. The appellee supported his case by the evidence of seven men, as follows: T. H. Pollock, banker and stock raiser, owned seven farms within five miles, and testified that the Wiles farm is one of the best in the state of Nebraska; that the value of the 385-acre tract was $250 an acre prior to the road going across it, and was worth $200 an acre after the road went across it. B. W. Livingston, who lived across the road east of the Wiles farm all of his life, testified that the value of the entire farm was decreased $40 to $50 an acre. He testified this was because of the perpetual damage during the lifetime of Mr. Wiles and his children's lifetime, and that he considered a paved highway much more damage to a farm than a railroad going across it. W. D. Wheeler, a former county official, who owned a 476-acre farm within four miles of the Wiles farm, testified that the highway going across this farm would make a difference in its value of $35 to $40 an acre. Frank P. Sheldon, who had been one of the appraisers, testified that he owned 1,000 acres of similar land, and that the value of the Wiles farm would be $225 to $250 an acre before the highway crossed it, and “I would say $40 to $50 an acre damage.” And three other men living in the vicinity testified to practically the same facts--that the entire Wiles farm was worth from $30 to $50 an acre less after the highway crossed it.
The first of the expert witnesses called by the highway department was H. N. Thomas, federal loan examiner for the Lincoln Joint Stock Land Bank, who has during the past few years appraised such farm lands for loans of more than $2,000,000. The next witness, Vincent W. Straube, who owns over 2,000 acres of land in Cass and Otoe counties, has been appraising lands for the Nebraska Guaranty Fund Commission for 11 years, and had also appraised in bankruptcy proceedings and railroad tax cases. These well-qualified experts placed the value of the five acres of land taken by the federal highway No. 75 at $1,011.68, a loss on the 12.1-acre strip between the road and the ditch at $1,200; the cost of the fences on both sides of the highway, $500; for permanent maintenance of the fence, $500; and each testified that the loss on the 340-acre tract, being the main body of the farm, and of the 29.5-acre tract outside of the ditch was nothing; making the total damages $3,211.68. James M. Teegarden, of Weeping Water, acquainted with farm values in Cass county for 27 years, agreed in the main with the other appraisers after making three inspections, but allowed a diminution in value of $30 an acre for the land outside of the ditch, making the total damages in his opinion amount to $3,796.68. He was positive the loss of market value on the 340 acres north of highway No. 75 was nothing.
Mr. H. N. Thomas testified that because of the ditch crossing the farm it had always been handled as two separate units.
How is it possible to reconcile such conflicting testimony? The testimony of the seven witnesses for the appellee followed the rule established in many cases in Nebraska. In Beckman v. Lincoln & N. W. R. Co., 85 Neb. 228, 122 N. W. 994, 996, 133 Am. St. Rep. 655, Chief Justice Reese said: “From the adoption of our present Constitution in 1875 to the present time, the uniform holding of this court has been that in the exercise of the right of eminent domain by the condemnation of real estate for purposes of right of way the landowner was entitled to the value of the land actually taken and the diminution in value of the land not taken as his damages.” See Omaha S. R. Co. v. Todd, 39 Neb. 818, 58 N. W. 289;Chicago, R. I. & P. R. Co. v. Buel, 56 Neb. 205, 76 N. W. 571;Fremont, E. & M. V. R. Co. v. Bates, 40 Neb. 381, 58 N. W. 959;Atchison & N. R. Co. v. Boerner, 45 Neb. 453, 63 N. W. 787. Some of the early Nebraska cases are Wagner v. Gage County, 3 Neb. 237;Chicago, K. & N. R. Co. v. Wiebe, 25 Neb. 545, 41 N. W. 297;Lowe v. City of Omaha, 33 Neb. 587, 50 N. W. 760;City of Omaha v. Howell Lumber Co., 30 Neb. 633, 46 N. W. 919; as cited in 2 Lewis, Eminent Domain, 1179.
And, in addition, if the owner has suffered any special damages, these must be considered. Lowell v. Buffalo County, 119 Neb. 776, 230 N. W. 842.
This court is mindful of the fact, called to its attention by appellee, that verdicts, though large, if within the estimate of some of the witnesses, should not be reversed without just cause. Kayser v. Chicago, B. & Q. R. Co., 88 Neb. 343, 129 N. W. 554;Atchison & N. R. Co. v. Washburn, 5 Neb. 117. Also, that no judgment should be reversed by reason of errors which do not affect the substantial rights of the adverse party. Comp. St. 1922, § 8657, Comp. St. 1929, 20--853, and the many cases cited thereunder.
However, in the brief...
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