100 Neb. 449 | Neb. | 1916
This cause was tried in the district court for Lancaster county on an appeal from a judgment of the county court confirming an appraiser’s award in a condemnation proceeding.
It appears that Sanitary District No. 1, of Lancaster county, made an application to the county court of that county to condemn a right of way for the construction of a ditch to straighten that part of the channel of Salt creek across the corner of the northeast quarter of section 7, township 10, range 7, in said county. Such proceedings were had that the appraisers found the damages to the land in question amounted to the sum of $500. Judgment was rendered on the award, and the sanitary district appealed to the district court. On a trial in that court the jury returned a verdict against the district and for the plaintif for the sum of $1,585.15. A motion for a new trial was overruled, judgment was returned on the verdict for that sum, and the sanitary district has appealed to this court.
It is appellant’s second contention that the verdict of the jury was excessive and is not sustained by the evidence. The record discloses that the cause was tried on the theory that the whole tract of 310 acres was damaged by the construction of the ditch. The witnesses for the plaintiff all testified that the whole 310 acres of land was worth $125 an acre -before the ditch was constructed, and that after ihe construction it was worth only $118 an acre, thus fixing the damages at $2,170. This testimony, as a whole, was entitled to little consideration. The record shows that the plaintiff’s witnesses gave their evidence with such perfect agreement that it should be carefully scrutinized by the court, and was not entitled to adoption as the true measure of damages. The record also shows that only 80 acres of the tract of land described in the application was damaged by the construction of the ditch, and it may be fairly said from the testimony that not more than 40 acres of it were damaged by such construction. The record shows that the ditch was about
Errors are assigned for the giving of instructions: First, that the court erred in not limiting the damages to the 80 acres across which the ditch was dug; and, second, that the court erred in not instructing the jury on the law relating to general and special benefits. An instruction should have been given restricting the damages to the land described in the application, and the jury should also have been instructed as to the law relating to benefits. A jury of laymen should not be expected to make correct findings on those questions without proper instructions. We therefore conclude that the judgment complained of should be reversed, and this will be done unless the plaintiff shall, within 30 days, remit all of said judgment, except $500 and interest on the same from the date of the award in the county court. It is further ordered that the sanitary district shall pay all the costs in the district court, and recover costs in this court.
Judgment accordingly.
I think the damages are excessive and there should be a remittitur, but the amount of the remittitur should be definitely ascertained and determined.