44 Neb. 719 | Neb. | 1895
The plaintiff in error was plaintiff in the district court and alleged in his petition, in brief, that he was the owner of certain land in Fillmore county; that a petition in due form had been filed with the board of supervisors praying that a county ditch be constructed, in its course crossing the plaintiff’s land; that no sufficient notice was given of the filing and pendency of such petition, but without such notice the prayer of the petitioners was granted; that the plaintiff had no notice of such proceedings; that the ditch was constructed across his land; that he filed a cláim of damages before the board of supervisors, which was allowed to the extent of $50; that this proceeding was an appeal from the order making such allowance; that his land was damaged to the amount of $1,000, for which sum he prayed judgment. The petition had attached thereto as exhibits certified copies of the-proceedings of the supervisors concerning said ditch. The county answered denying all allegations not specifically admitted, then alleging affirmatively that the ditch ran through the plaintiff’s land, and while it caused some damage the benefits therefrom to said land exceeded the damage, and that the plaintiff was therefore entitled to recover nothing. The answer further alleged that due notice had been given, and that the plaintiff neglected to file his claim within the time provided by law. There was a trial to a jury and a verdict for the defendant, on which judgment was entered, and the plaintiff prosecutes error.
. Error is assigned upon the giving of instructions 8, 9,10, 11, and 12. The language of the assignment is the same as in Hiatt v. Kinkaid, 40 Neb., 178. The twelfth instruction states the familiar rule that in such cases general benefits may not be set off against damages sustained. This instruction was undoubtedly correct. (Schaller v. City of Omaha, 23 Neb., 325.) This instruction being correct the whole assignment must be overruled.
Another assignment is to the giving of instruction No. 2 asked by the defendant. The record contains an instruction numbered 2, but it does not appear whether it was
While we are thus precluded from examining many of the questions presented, we still think that the judgment must be reversed. One assignment is that the verdict is contrary to law. The petition alleges and the answer expressly admits that the ditch was constructed through and across the plaintiff's land. The verdict was absolute for the defendant. Under no possible state of the evidence could this verdict be right. The court instructed the jury, and we must presume correctly, that no proceedings had been taken which would preclude the plaintiff from maintaining his action. Payment of compensation was not pleaded. The plaintiff was, therefore, entitled as one item of damages to recover the value of the land actually appropriated for the construction of the ditch. Against this item of damages no benefits could be set off. In addition thereto he was entitled to recover any damages sustained by the land not appropriated, and as against the latter item special benefits, but not general benefits, might be set off, provided that the use for which the appropriation was made was a public use and within the power of eminent domain, — a question not here raised and not decided. (Wagner v. Gage County, 3 Neb., 237; Fremont, E. & M. V. R. Co. v. Whalen, 11 Neb., 585; Chicago, K. & N. R. Co. v. Wiebe, 25 Neb., 542; City of Omaha v. Howell Lumber Co., 30 Neb., 633.) The foregoing is a rule interpreting that clause of the constitution providing that the property of no person shall be taken or damaged for public use without just compensation therefor. Whether the act providing for the construction of such ditches (Comp. Stats., ch. 89) contemplates an assessment of damages in accordance with this rule is immaterial to the case. It is beyond the power-
Counsel attempt, in their briefs, to draw a distinction-between the measure of- damages in the case of condemnation proceedings and in a ease where the county has entered without instituting any such proceedings. As the-case must be remanded for a new trial it may be well to-say that we do not conceive this distinction to be well founded. The rule of damages, as above stated, applies to-every case of the appropriation or damage of property for public use without regard to the nature of the proceedings, in which recovery is sought.
Reversed and remanded.