56 Neb. 205 | Neb. | 1898
The Chicago, Rock Island & Pacific Railway Company instituted proceedings for the condemnation of right
The first assignment argued in the brief is directed against the ninth or last instruction given .by the court on its own motion, which was to the effect that if the jury ascertained that the value of the land'taken for right of way purposes and the damages to the remainder of the tract, if any, determined in accordance with the previous instructions, together, exceeded the sum of $800, —the amount awarded by the commissioners,—interest was to be allowed at the rate of seven per cent per annum on the entire sum found by the jury to be due the plaintiff below. This instruction is in harmony with many adjudications of this court, and is opposed to none. It is well settled that where, on an appeal for an award of damages for lands taken for right of way, the damages are found to exceed the sum returned by the commissioners, the owner is entitled to interest from the date of the appropriation. (Sioux City R. Co. v. Brown, 13 Neb. 317; Berggren v. Fremont, E. & M. V. R. Co., 23 Neb. 20; Atchison & N. R. Co. v. Plant, 24 Neb. 127; Burlington & M. R. R. Co. v. White, 28 Neb. 166.)
The gist of the argument of counsel for the railway company is that evidence was adduced as to damages occasioned by the destruction of crops, by digging a ditch, and various other items of damages, and that the instruction assailed permitted a recovery of interest on such damages from a date long anterior to the time they accrued. This is not a fair criticism of the doctrine announced by the court The ninth paragraph of the charge, in express terms, confines the jury in the determination of the damages to the principles laid down for
Complaint is made of the allowance of the witness Boarman to testify that the depreciation in value of the land resulted from the embankment constructed by the defendant backing surface water on the land and destroying the crops, and that witness observed water standing on the land after the construction of the road. The record shows that Boarman was called as a witness for the landowner and testified on direct examination as to the value of the land, both before and after the appropriation. It Avas on cross-examination of the witness by the attorney for the defendant company that the testimony was given of which complaint is now made. A reversal cannot be had for the admission of incompetent evidence brought out by the unsuccessful party. For the same reason error cannot be predicated upon the testimony of plaintiff’s witnesses Wilson and Meyers relating to the depreciation in value of the land caused by the damming-up of the water, since the testimony was elicited on cross-examination by the railway company. Moreover, the defendant could not have been prejudiced by this class of testimony, for the jury were directed by the sixth instruction as follows: “You are not, however, to consider any damages to the land not taken, if any
It is urged that there was prejudicial error in the trial court refusing to strike out the evidence of the witness Boarman as to damage's sustained by surface water and destruction of crop’s. His testimony having been given in response to interrogatories propounded by counsel for defendant, it cannot complain because’ the court declined to eliminate it from the record.
Objection is made to the receipt in evidence of a map of plaintiff’s lands. This document was made by á civil engineer and was shown to be a correct map or plat of the premises in controversy. It was admissible in evidence to enable the jury to properly understand and apply the other evidence adduced on the trial, especially as both parties used the map in the examination and cross-examination of the witnesses. (Village of Culbertson v. Holliday, 50 Neb. 229; Brown v. Galesburg Pressed Brick & Tile Co., 132 Ill. 649; State v. Harr, 17 S. E. Rep. [W. Va.] 794; Clegg v. Metropolitan S. R. Co., 37 N. Y. Supp. 130; Le Beau v. Telephone & Telegraph Construction Co., 67 N. W. Rep. [Mich.] 339; Goldsborough v. Pidduck, 54 N. W. Rep. [Ia.] 431; Chicago, K. & N. R. Co. v. Davidson, 49 Kan. 589; Roderiquez v. State, 22 S. W. Rep. [Tex.] 978.)
Objection is raised to permitting plaintiff to testify as to the value of the land in dispute. It is argued that he was not shown to be competent to testify on the question of value. The evidence discloses that he owned the land and cultivated it, was familiar therewith and with other real estate in the same vicinity, and that he -was acquainted with the value of his farm before and after the location of the defendant’s right of way. ne was competent to testify on the subject of value, even though he was not an expert, or dealer in real estate. The first
We have examined and considered the other rulings of the trial court on the admission of evidence, to which reference has been made in the brief, and discover no error therein prejudicial to the company.
In discussing the fourteenth, fifteenth, twenty-eighth, and twenty-ninth assignments of error counsel for the cooperation observe: “The measure of damages in a railroad condemnation where a part only of the land is taken is the fair market value of the land actually taken, plus the depreciation in value of the remainder caused by the proper construction and operation of the road.” This is sound doctrine, and is sustained by the decisions of this court. (Blakeley v. Chicago, K. & N. R. Co., 25 Neb. 207; Chicago, K. & N. R. Co. v. Wiebe, 25 Neb. 542; Omaha S. R. Co. v. Todd, 39 Neb. 818; Fremont, E. & M. V. R. Co. v. Bates, 40 Neb. 381; Chicago, B. & Q. R. Co. v. O’Connor,
Affirmed.