72 Neb. 162 | Neb. | 1904
The plaintiff in error, Stephen B. Scace, is the owner of 313 acres of land adjoining the city of Wayne, part of the same lying in section 16 and part of it in section 17. A road was established by the county commissioners of Wayne county on the section line between sections 16 and 17 across his land. The entire tract was fenced in one body and was used by the plaintiff to furnish pasturage for hire to the inhabitants of the adjoining city of Wayne for their horses and cattle. The tract was irregular in shape. The proposed road entirely cut off and separated one 80 acre tract from the remainder of the
We have been unable to ascertain from the record that the plaintiff was in any wise prejudiced by being required to elect whether to proceed as upon appeal or as an original action. We do not think the action of the district court in requiring his election was erroneous, though it was probably unnecessary, since the cause was in court upon appeal as it was, and this election did not change the status of the case.
Prom an examination of the rulings of the trial court upon the introduction of evidence, and of the instructions to the jury, it is apparent that the jury were confined in their estimation of damages to the fair market value of the land actually taken, together with the expenses of moving the fence. The plaintiff in error testified that the value of the land before talcing for the road was $125 an acre, and offered to show what the value of the entire tract was after the taking of the one-half mile strip for the road, which offer was rejected by the court. The court also refused to allow him to show that the principal value of the land was for pasturage, and to show the effect on its value for that purpose that the cutting off the 80 acre tract would have. It is clear that a tract of land may, on acount of its close proximity to a town or city, he enhanced in its value by reason of its advantage of situation for pasturage purposes. If this be so, then the person from whom it is taken, or whose estate in it has been diminished in value, should be allowed to recover the entire pecuniary injury which he has suffered, and should be permitted to prove the value of the entire tract of land before and after the taking, for whatever purpose it may he used, as the means of ascertaining whether he has been damaged by the taking thereof. Instruction numbered one given by the court upon its own motion is as follows: “You are instructed that the only issue for you to deter
Section 21, article I, of the constitution of 1875, provides :
“The property of no person shall be taken or damaged for public úse without just compensation therefor.” It has been the settled doctrine of this court since the adoption of this provision that, whenever the property of any person has been injuriously affected by the appropriation of the property itself, or property adjoining, for public purposes, the person injured has been entitled to recover the actual damages suffered by him. The words “or damaged” were not contained in the constitution of 1866. The object of the insertion of these words in the constitution of 1875 was, as is said in Gottschalk v. Chicago, B. & Q. R. Co., 14 Neb. 550: “To grant relief in cases where there was no direct injury to the real estate itself, but some physical disturbance of a right which the owner possesses in connection with his estate, by reason of which he sustains special injury in respect to such property in excess of that sustained by the public at large.” This court has so often construed this constitutional provision that it is unnecessary to discuss it further. Schaller v. City of Omaha, 23 Neb. 325; City of Omaha v. Kramer, 25 Neb. 489; Chicago, K. & N. R. Co. v. Hazels, 26 Neb. 364; McGavock v. City of Omaha, 40 Neb.*166 64; City of Harvard v. Crouch, 47 Neb. 133; Chicago, R. I. & P. R. Co. v. O’Neill, 58 Neb. 239. Tbe instruction given by tbe trial court was erroneous, and tbe refusal to instruct that tbe plaintiff in error was entitled to damages for tbe depreciation, if any, in tbe value of tbe remainder of tbe tract was also prejudicial error.
As to the contention of defendant in error that, since tbe statute makes all section lines public roads, and that tbe plaintiff bought tbe premises charged with knowledge of these statutory provisions, and hence must be deemed to have accepted tbe property with the burden of the liability to damage by tbe taking of tbe same by the' public, we have only to say that tbe object of tbe statutory provisions was to avoid the necessity of tbe filing of a petition before a road upon a section line could be opened. Tbe status of land over which a section line runs is no different from that of other real estate, and the property rights of tbe owner of such land are as fully protected by tbe constitutional guarantees as are those of the owner of any ’other real estate. Tbe provisions of tbe statute merely dispense with the’ necessity of a petition for tbe location of tbe road before tbe county board can act upon tbe matter.
For these reasons, we recommend that tbe judgment of tbe district court be reversed and tbe cause remanded for further proceedings.
For tbe reasons stated in tbe foregoing opinion, tbe judgment of tbe district court is reversed and tbe cause remanded for further proceedings.
Reversed.