114 Neb. 362 | Neb. | 1926
The city of Lincoln, exercising the power of eminent domain, appropriated a tract of land, of approximately 159 acres-, owned by plaintiff.
Plaintiff makes seven assignments of error, but the one which seems entitled to first consideration is the assignment which alleges that the recovery is grossly inadequate compensation for the property taken.
The property is located less than a mile from two of the railway depots, the United States post office, the city hall, and the state university. The chief engineer of the Chicago, Burlington & Quincy Railroad Company, and the former superintendent of that railroad company at Lincoln, testified that, at the time the land was taken over by the city, it was so situated as to be available for railroad track-age, industrial plants, etc. The correctness of this testimony is not questioned.
The ground is low, unsightly, and, if used for industrial purposes, it would require considerable filling, but the engineer just mentioned testified that the value of property for the purposes heretofore mentioned is to be determined by its location rather than by the elevation of its- surface.
For many years the valley of which this land forms a part was subject to overflows, and this condition seriously affected the market value of the land, ■ but the testimony shows that, prior to the institution of these proceedings, drainage districts had been organized and drainage canals dug and the danger from overflow reduced to a minimum.-
On the trial, there was some attempt to show that a part
It would extend this opinion to an unnecessary length to take up separately the testimony of each witness- as to value. Nine witnesses were called by plaintiff, each of whom qualified as an éxpert on values by showing his many years’ experience in banking, real estate, etc., and his personal knowledge of the land, and their valuations varied from a minimum of $57,650 to a maximum of $78,600, with an average of over $68,000.
An average of the valuations fixed by a like number of witnesses testifying for defendant was slightly in excess of $18,000. The right of some of these witnesses to be regarded as experts on the value to be placed upon property of this character is open to question. The witness making the lowest valuation, on cross-examination, admitted that in making his estimate he did not take into account the sale of a tract of ground separated only by a street from plaintiff’s ground, and stated that such sales did not influence his judgment. As we understand his testimony, he was inclined to measure the price of plaintiff’s land according to its worth for agricultural purposes, when, by the testimony of men of sound judgment and unquestioned veracity, it is shown to be chiefly valuable for industrial purposes. An
In behalf of defendant, it is argued that three tribunals, namely, the original board of appraisers, and two juries, have made findings as to the value of plaintiff’s property, and, therefore, this court should not disturb the judgment appealed from.
The finding made by the original board was so low, it may be said to show on its face that it was grossly inadequate. The judgment entered by the first jury was set aside because it was found to be based upon evidence which ought not to have been admitted. Are we now bound by a verdict which has already been adjudged to be erroneous? No. Such a holding would ultimately lead to a rule which would sustain an erroneous verdict because there had formerly been, in the same case, an erroneous verdict.
This court may be reluctant to disturb the findings of a jury, nevertheless, it has never refused so to do, where to sustain the verdict palpable injustice would result. At an early period this court said:
“To justify an interference with the finding of a court or jury, the preponderance of evidence must be clear, obvious and decided; but when the preponderance is so great, it is*366 the duty of the reviewing court to correct the mistake.” Fried v. Remington, 5 Neb. 525.
And in a case, similar in its nature to the one before us, it is said:
“On an appeal from an award of damages for the construction of a viaduct it appears from the proof that the damages were grossly inadequate. The verdict and judgment, therefore, are set aside and the cause remanded for further proceedings.” Stanwoood v. City of Omaha, 38 Neb, 552.
And in Bentley v. Hoagland, 94 Neb. 442, it is held:
“Where the verdict of a jury is clearly against the weight and reasonableness of the evidence, it will be set aside and a new trial granted.”
See, also, Spirk v. Chicago, B. & Q. R. Co., 57 Neb. 565.
It is not deemed necessary to discuss the other assignments made. The rulings on the admission of evidence, and the permission to the jury to view the land involved, notwithstanding the changes that had been made after the land had been taken over by the city, were, in part, invited by plaintiff’s counsel, and these errors, if such they be, are not likely to occur upon a retrial.
The judgment is reversed and the cause remanded for further proceedings.
Reversed.