271 N.W. 864 | Neb. | 1937
Defendant appeals from a judgment on verdict for $23,-813.70, with 6 per cent, interest thereon from November 19, 1935, which was the date of the overruling of the motion for new trial and of the entry of the judgment.
The action was for damages for taking 68.7 acres of land owned by plaintiffs by virtue of deeds coming down from the government and of certain accreted land and
In answer to special interrogatories submitted to the jury, they fixed the value of the land, actually condemned and taken at $3,942.80, and the damages to the other lands of the MeGinley ranch at $18,400. The difference between the sum of these two amounts and the verdict probably resulted from the computation of interest by the jury from the date of condemnation and taking of the , land to the date of the verdict.
The consequential damages were submitted to the jury and determined by them on the whole ranch, which extended irregularly for many miles to the north line of Keith county and to some extent into Arthur county on the north. Mr. MeGinley testified that he has 46',500 acres of deeded land, 2,560 acres of school land, and 440 acres of other leased land in the ranch, all of the deeded land being in his own name except 160 acres which is in his wife’s name; that the ranch has 4,000 acres of bottom land and that the balance is sandhill pasture land.
The district objected to this evidence of consequential damages to that portion of the ranch extending so far from the river. While the MeGinley petition claimed damages of $35,000, there was evidence of their witnesses that the damages to the ranch amounted to wbat would be at least one dollar an acre or $46,000.
The McGinleys’ petition sets forth that the ranch was a compact body with approximately six miles of frontage on the river and extending north; that the farm-house,
The main questions are as to whether damages to the whole ranch, consisting of 46,500 acres of land, are to be considered in fixing the consequential damages to the re
In 10 R. C. L. 157, sec. 138, it is said: “In determining what constitutes a separate and independent parcel of land, 'when the property is actually used and occupied, unity of use is the principal test, and if a tract of. land, no part of which is taken, is used in connection with the same farm, or the same manufacturing establishment or the same enterprise of any other character as the tract, part of which was taken, it is not considered a separate and independent parcel merely because it was bought at a different time, and ■ separated by an imaginary line, or even if the two tracts are separated by a highway, railroad or canal.”
2 Lewis, Eminent Domain (3d ed.) 1207, sec. 698, says: “Under the rule that, where part of a tract is taken, damages or. benefits to the entire tract may be considered, it sometimes becomes a question of some difficulty to determine what is to be regarded as the entire tract. In general it is so much as belongs to the same proprietor as that taken, and is continuous with it and used together for a common purpose. Thus, the whole of a farm is one tract, although it may consist of several government subdivisions, or lie partly in different counties, or have its parts separated by a highway or railroad or canal, and though the fee of the canal is in the state.”
The principle that one whose land was condemned was not limited in his damages to the particular lot or subdivision, a part of which was taken, but was entitled to damages- to his other lands for the direct effect of the taking of the lands condemned, began early to find expression in our cases. Northeastern N. R. Co. v. Frazier, 25 Neb. 42, 40 N. W. 604; Blakeley v. Chicago, K. & N. Ry., 25 Neb. 207, 40 N. W. 956; Atchison & N. R. Co. v. Boerner, 34 Neb. 240, 51 N. W. 842; Fremont, E. & M. V. R. Co. v. Bates, 40 Neb. 381, 58 N. W. 959 (where substantial damages were affirmed for depreciation of a 320-acre farm, by reason of
In Scace v. Wayne County, 72 Neb. 162, 100 N. W. 149, the owner had 313 acres adjoining the city of Wayne, part of it in section 16 and part in section 17. The entire tract was fenced and used together. A road was established cutting off 80 acres from the remainder of the tract. It deprived the owner of the use of a well, wind-mill, and tank located upon the land taken for the road and necessitated new fences. The court refused an instruction requested by the owner asking damages for the depreciation in value of the whole farm, and instructed the jury to find as damages only the fair market value of the land taken and the reasonable expense of moving the fence therefrom to the side of the road. The judgment was reversed, this court holding that the measure of damages was the depreciation in value of the entire tract, less benefits accruing to the owner.
Wiles v. Department of Public Works, 120 Neb. 689, 234 N. W. 918, involved the appropriation of a strip of ground across the southeast corner of plaintiff’s 385-acre farm, cutting off about 43 acres from the remainder of the farm. Plaintiff got a verdict and judgment for $9,000. This was reversed as excessive, but was affirmed on condition that plaintiff would remit $3,000. The opinion reviews quite a number of Nebraska cases and remarks that in none of them “is the size of the tract as large as in the case at bar, i. e., 385 acres.”
Crawford Co. v. Hathaway, 67 Neb. 325, 93 N. W. 781, is invoked by appellant as fixing the rule that consequential damages, involved in the condemnation of riparian rights, are limited to lands adjoining the riparian lands condemned and not extending beyond the government fraction acquired by a single entry or purchase from the government. The thirteenth and fourteenth syllabus points in that case say:
“Land, to be riparian, must have the stream flowing over it or along its borders.
“The extent of riparian land cannot, in any event, exceed the area acquired by a single entry or purchase from
The text of the opinion, as shown on pages 353 to 356, fully elaborates the thesis of the syllabus, cites the authorities supporting it, and queries, but does not decide, whether the riparian rights should be attributed to a governmental entry of 40 acres or of a larger quantity of land not exceeding 640 acres.
The McGinleys claimed damages in this case for (1) the condemnation of their riparian lands and rights, and (2) for damages to the remainder of their ranch by reason of the taking or cutting off of rights arising out of their riparian ownership. Under the implications of Crawford Co. v. Hathaway, supra, no riparian rights attached to any of their ranch unless it was an unsevered part of the governmental subdivision possessing the attributes of riparian lands along the river. Other parts of the ranch, near or far, never had any riparian rights. They never could attain them because it was contrary to the nature of things. Riparian rights are such because they arise from being on the banks of a river or stream.
It is quite apparent that the unity of use rule we have quoted from Ruling Case Law and from Lewis on Eminent Domain does not apply to damages for taking land and thus depriving the owner of his riparian rights therein to the same extent as to area as it does where condemnation' of a part of a farm is had for a railroad or for public works where riparian rights are not involved. For the ordinary condemnation for use of a railroad or for public works, the land that is damaged would seem from the authorities to take in all parts of a farm or ranch whose unity of use is impaired by the owner’s deprivation of that which is taken (though we do not wish to lay down the rule that it would affect the uttermost part of a large ranch such as is in
It follows that the district court erred in its instructions and in the admission of evidence allowing the jury to fix consequential damages to the vaster area of the ranch involved. The judgment of the district court is reversed and the cause is remanded for a new trial in harmony with this opinion.
Reversed.