62 Neb. 1 | Neb. | 1901
Plaintiff in error instituted an action against the defendant in error for the recovery of damages to real estate alleged to have been sustained by reason of grading down a street, on which the real estate abutted, in the town of Florence, in defendant county. From a verdict and judgment in favor of the county the plaintiff prosecutes error to secure a reversal thereof.
The grading was done under the provisions and authority of sections la to Id, inclusive of chapter 78 of the Compiled Statutes, entitled “Roads.” The sections referred to are a part of the laws of 1889, being chapter 8 of the Session Laws, entitled “An act to authorize the county board of any county in which a city of the metropolitan, or cities of the first class having over
It is conceded that no notice was given to the legal owner or the mortgagee at the time of, or prior to, the act of grading complained of.- By paragraphs 9 and 10 of the petition it is averred:
“9. That no action whatever was taken by the defendant or board of commissioners for the assessment of the damages done to said property and suffered by the plaintiff as mortgagee thereof or as suffered by the holder of the legal title thereto, and that no effort has been made even at this date, on the part of said defendant or its board of commissioners to determine the amount of damage done to said premises by reason of the said grading of State street in front thereof, suffered by this plaintiff and by the holder of the legal title of said premises during said time. -
“10. That neither the said defendant nor its board of commissioners ever caused personal or any notice to be served on this plaintiff of the defendant’s intention to grade said State street and especially that part thereof in front of the aforesaid premises, although this plaintiff all the while had its chief office and its chief officers within the city of Omaha in said Douglas county; nor ever served or attempted to serve the said Hannah K. Kilborn with either personal or public notice of the defendant’s intention to grade that part of said State street; and Said board of commissioners of said defendant never gave this plaintiff or said Hannah E. Kilborn an
The damages claimed and the cause thereof are stated in the eleventh paragraph, as follows:
“11. * * * That the west half, or 330 feet of the north side of said block, has been left by said grading a perpendicular wall and all ingress from said street to the west half of said lot and all egress from said street to the west half of said lot to said street has thereby been wholly cut off and destroyed; that by reasbn of the grading- of said State street in front of the aforesaid premises, the said defendant damaged and lessened the value of said premises in fully the net amount of $3,000 and that the plaintiff, because of its interest in said premises during the whole of the time of said grading, has been damaged thereby by the county of Douglas in the sum of $900.54 together with interest thereon at the rate of ten per cent, per annum from the twenty-first day of September, 1891, until paid.”
The cause was submitted to the jury on instructions directing- them to find from the evidence the actual damages sustained by the plaintiff, if any, and return a verdict accordingly.
It is now urged that the court erred in not authorizing a recovery of at least nominal damages, on the theory that the failure of the county commissioners to- give the notice to property owners contemplated by the statute, providing for the mode of assessment of damages sustained or benefits received by reason of the proposed improvement, before the work of grading was engaged in, was an actionable wrong, giving to, the plaintiff the right to recover, in any event, nominal damages, when it is found that no actual loss was suffered by reason of the grading- complained of. We do not think the position of counsel tenable, or that a recovery is permissible, except for the actual damages sustained by reason of the grading of the highway. The petition is not framed, nor was the case tried, on the theory that the county
The plaintiff attempted to prove by its president the value of the land alleged to be damaged. The proposed testimony was excluded, on the ground that the witness had not shown himself qualified to testify as to its value. The witness had not shown himself familiar with the value of that particular tract of land, or with values generally in that vicinity. He says that at the time the loan was made he knew “what we thought the value was,” and “it was sufficient to make' a loan of $4,500.” As to its value in May, 1891/ when the grading was done, he says: “No, I could not say that I would place a value at that time.” It was not error to exclude the proposed testimony. The witness had not shown himself sufficiently qualified. The plaintiff had abundant sources of establishing the value of the land without resorting to the testimony of one so unfamiliar with values in that vicinity as the witness whose testimony was rejected. It is claimed that he should be treated as the owner of the property and presumed to know its value, because lie is the president of the corporation purchasing it at the foreclosure sale. He, as the president of the company, is not an owner of property belonging to the corporation in the sense of the word when applied to an individual owner. An officer of a corporation may have no greater personal knowledge of the value of its property than an entire stranger. The question would depend on the nai ture of his duties in relation to the corporation and his means of acquiring knowledge of the value of the property inquired about. In this case there is no presumption in his favor, as in the case of an individual owning property, and nothing to show that the witness’s knowledge was such as qualified him to testify as to the value be
It is next contended that the court erred in permitting a witness for the defendant to testify as to the valué of the property, because he had not shown himself qualified. The witness testified that he was dealing in real estate some, trading in real estate, buying and selling, etc., and was familiar with the value of property in Florence during the period covered by the acts out of which grew this controversy. He showed himself sufficiently qualified to express an opinion as to the value of the property involved. There must of necessity be lodged in the trial court some discretion in determining the competency of testimony in the nature of opinion-evidence, which will not be disturbed on review, except when clearly erroneous as a matter of law. Such is not the case regarding the objections to the rulings of the trial court in the case at bar.
On the cross-examination of a witness, after he had testified in chief that the graded street was 100 feet wide, it was elicited that the street as graded was but 82J feet wide, having been narrowed at the time the grading was done. It was then attempted to be further shown on cross-examination that the adjacent property, including the plaintiff’s, received the benefit of the portion vacated by reason of the street being narrowed. This character of testimony was objected to and excluded. It is now urged that the plaintiff was prejudiced by reason of the testimony which was admitted, most of which was -without objection, and on a subject drawn out in the direct examination, and that the jury was at liberty to draw the inference that the property had been specially
Complaint is made because of the exclusion by the court of a certain exhibit offered by the plaintiff, in the nature of impeaching evidence of a witness who had testified for the defendant as to the value of the property claimed to be damaged. The exhibit offered for the purpose of impeachment purported to be an official ap
The judgment is accordingly
Affirmed.