| Iowa | Apr 11, 1873
This question was objected to and excluded.
The witness, however, testified as to the value of the farm immediately before the right of way was taken, and immediately thereafter, not taking into consideration the benefits to result from building the road.
The evidence admitted is in strict accord with the rule established in Henry v. The Dubuque and Pacific Railway Co., 2 Iowa, 288" court="Iowa" date_filed="1855-12-15" href="https://app.midpage.ai/document/henry-v-dubuque--pacific-railroad-7091066?utm_source=webapp" opinion_id="7091066">2 Iowa, 288, and furnished the jury exact data from which to determine the question asked the witness. There was, therefore, no error in the ruling of the court; certainly none by which appellant was prejudiced.
II. Plaintiff asked of a witness the following question: “ State your opinion as to the damage the plaintiff sustained as the owner of that farm, by reason of the taking of the land
III. It appeared from the evidence that the defendant’s road cut off from the body of plaintiff’s farm a tract of five acres. The defendant was allowed to prove the value of the five acres. In this we discover no error. In determining the value of the farm, after the right of way was taken, the jury might well consider the value of its component parts.
Appellant himself seems to have acted upon this theory. The farm comprises 320 acres. Yet plaintiff’s witnesses testified as to the value of the various eighties of which it is composed.
IY. Plaintiff asked the court to instruct the jury: “ That a railroad company is not by the law required to fence its railroad track.” The court refused to give this instruction as asked, and gave to the jury the substance of the act rendering railroads absolutely liable for injuries resulting from a failure to fence. The instruction given fairly presents the law, and there was no error in refusing that asked.
Y. The court instructed the jury that in estimating damages, “ future benefits, or the unwillingness of the owner to part with the right of way are to be disregarded.” To this it is objected that the jury are not advised as to what is meant by the term “future benefits,” and that the instruction should have been more explicit. It is not claimed that the instruction lays down an incorrect rule of law. If, in appellant’s opinion, the instruction needed explanation, he should have asked it. Not having done so he cannot now complain. Miller v. Bryan, 3 Iowa, 58" court="Iowa" date_filed="1856-06-15" href="https://app.midpage.ai/document/miller-v-bryan-7091103?utm_source=webapp" opinion_id="7091103">3 Iowa, 58; Ault v. Sloan, 4 id. 508.
They were told this in substance when they were directed that their verdict should be based on the evidence delivered in open court. If appellant desired a more explicit instruction upon this point, he should, as we have before stated, have asked it. The instruction accords with the rule laid down in Close v. Samm, 27 Iowa, 503.
YII. After the appeal was taken the defendant filed in the circuit court an offer to confess judgment for the sum of $350, pursuant to the provisions of section 3404 of the Revision.
The damages had been assessed by the commissioners, and the amount awarded paid to the sheriff.
By such payment the right of the defendant to the way over plaintiff’s premises was established. Rev., § 1314. The right was not suspended by the appeal. The only question pending upon the appeal was whether the plaintiff was entitled to recover more than the commissioners had awarded. The amount determined was payable in money. The action was for the recovery of money, and it falls within the spirit of the provisions of section 3404. It would too much narrow this
We discover no error in the record.
Affirmed.