39 Neb. 523 | Neb. | 1894
This was an action in the district court of Pawnee county against the Chicago, Kansas & Nebraska Railway Company to recover for damage to lots 10, 11, and 12 in block 8, in Hazel’s addition to Pawnee City. Afterwards an amended petition was filed against said defendant and the plaintiff in error, the Chicago, Rock Island & Pacific Railway Company.
Plaintiff, in his amended petition, states that during the year 1886 the Chicago, Kansas & Nebraska Railway Company built and constructed a railroad in Pawnee City, and in the building, operation, and construction of said railroad a large portion of Third street is occupied and used; that blocks 10, 11, and 12, in said city, are owned by the said company, and that said railroad is constructed upon the same; that said railway company has built, constructed, and operated its railroad and stock yards upon, over, and across said block 11; that Walnut street in said city extends north and south along the east side of blocks 8 and 11, and in the. building and construction of its railroad said company threw up” and built a large embankment, entirely obstructing said street at a point about 200 feet south of the southeast corner of lot 12 in said block. It is further alleged “ that the plaintiff is the owner in fee-simple of lots Nos. 10, 11, and 12 in said block 8, his dwelling house being situated on the south end of lot 12 in said block, which he occupies for his residence,” and that ever since the construction of said railroad and stock yards said yards have been used almost continuously day and
The Chicago, Kansas & Nebraska Railway Company was not notified of said action, and did not enter its appearance therein.
The answer of the Chicago, Rock Island & Pacific Railway Company, in addition to a general denial, contains an allegation that the railroad referred to in the amended petition was constructed by the Chicago, Kansas &• Nebraska Railroad Company, a corporation of the state of Nebraska, and that afterwards said railroad company sold and con-. veyed the same to the Chicago, Kansas & Nebraska Railway Company, a corporation of Kansas and Nebraska, and
On the trial of the action in the district court, a verdict was returned for the plaintiff below, upon which judgment was rendered. The plaintiff in error, after moving unsuccessfully for a new trial, has removed the case into this court by petition in error.
The plaintiff below was permitted, over the objection of the defendant therein, to prove that the lots in controversy were worth $1,000 immediately prior to the construction of the said road, and that immediately after the completion of the tracks and the stock yards they did not exceed $500 in value. The ground of the objection to this evidence is that the right of action, where land is taken or permanently injured in the construction of railroads, or by other agencies of the state, is personal and does not run with the land.
From an inspection of the petition it will be observed that it is not alleged therein that the plaintiff owned the lots described when the road was constructed in 1886. The only allegation is that “he is [at the date of the filing the petition, in March, 1890] the owner of said lots and occupies them as a residence.” A grantee of land which is subject to a right of way or other easement takes it burdened with such incumbrance, and is not, as a rule, entitled to recover damage therefor. (Wadhams v. Lackawanna & B. R. Co., 42 Pa. St., 303; Beale v. Pennsylvania R. Co., 86 Pa. St., 509; Davis v. Titusville & O. C. R. Co., 6 Atl. Rep. [Pa.], 736; Chicago & A. R. Co. v. Maher, 91 Ill., 312;
It is conceded that had the Chicago, Kansas & Nebraska Railroad Company been a trespasser in the first instauce, and continued to occupy the streets without authority from the city, a different question might have been presented; but the use of the street by the railroad company for its tracks was fully authorized by the ordinance, hence the right of action"for injury to the property described accrued to the owner when the road was constructed, in the year 1886. A recognized rule of pleading is that the complaint in an action for trespass must allege that the plaintiff was the owner or in possession when the trespass was committed. (Winkler v. Meister, 40 Ill., 349; Edwards v. Noyes, 65 N. Y., 125; 2 Boone, Pleading, p. 442.) Counsel who appear for the defendant in error in this court frankly admit that the petition would have been held insufficient had it been assailed by a motion for a more specific statement. Where a pleading is sufficient in substance but wanting in form, the remedy is by motion (Farrar v. Triplett, 7 Neb., 237); but where the petition lacks an essential allegation, without which it fails to state a cause of action, objection on that ground may be raised by demurrer, or by motion for new trial. Another rule is' that where the pleader has failed to state a material fact, the presumption is that it does not exist. (Burlington & M. R. R. Co. v. York County, 7 Neb., 487; McClure v. Warner, 16 Neb., 447.)
Our conclusion is that under the allegations of the petition the plaintiff was not entitled to recover damages for the appropriation of the street by the defendant company for its tracks, and that the submission of that question to the jury, over the objection of the defendant, was error. There are other errors assigned, but the record of the case
Reversed and remanded.