99 Neb. 38 | Neb. | 1915
This is an appeal from an assessment of damages in condemnation proceedings brought for the location of a drainage ditch. The plaintiff is the owner of a large tract of land in the valley of the Nemaha river, a little over 300 acres of which is within the limits of the drainage district. In the construction of the ditch it became necessary to run the main channel and a lateral ditch through the plaintiff’s land. There was a general verdict and judgment for plaintiff for $1,151.96. Plaintiff has appealed. The jury made special findings of fact to the effect that 21.38 acres of land had actually been taken for the ditches, that this land was worth $45 an acre, and that there were no consequential damages to the land not taken. No complaint is made as to the findings as to the number of acres actually taken or the amount allowed as the value of the same, but the appeal is concerned with the right to recover for consequential damages to the remainder of the tract.
There is a radical difference between the conception of plaintiff and defendant regarding the law covering the recovery of consequential damages where land has been taken for a drainage ditch. The view of the district, which was adopted by the court, is. that, where the land has been benefited by the construction of the ditch to an amount in excess of its assessment for the cost of construction, these excess benefits may be set off against consequential damages, and that, since the market value of his land was increased by the enterprise more than the consequential damages sustained, plaintiff suffered no pecuniary loss for which damages can be recovered. Plaintiff takes the position that, in the case of a drainage district, general benefits are those which are enjoyed, not alone by the landowner through whose premises the ditch is run, but those which are enjoyed in common by all the proprietors of the land within the district.
The court was right in refusing to charge that “general benefits” are those which are enjoyed, not alone by the plaintiff, but by the 'property owners along the line of the ditch. Proprietors along the line of the ditch have received substantial benefit by its excavation draining the land of surplus water, preventing overflows, and permitting crops to be grown where it was impracticable to do so before. These are special benefits. They share, in common with other landed proprietors along or near the boundaries of the district, general benefits, in the increased healthfulness and salubrity of the surroundings, the ability to use the public roads at a time when, if undrained, the roads would be impassable, the removal of swamps or low and wet places, fit breeding ground for malaria-carrying mosquitoes and other pests, and in the general desirability of the .vicinity as an abiding place.
The complaint that the court erred in refusing- to instruct that, if the ditch intersected any way by which the plaintiff had access to his farm, they should allow as part of his damages the reasonable cost of construction of a suitable bridge, is not well taken. The court- expressly
As to the complaint that the court erred in refusing to instruct that, as a matter of law, the duty devolved upon the defendant to make and maintain suitable bridges over any private roads upon the land, the requested instruction was foreign to the issues, and inconsistent with that just mentioned tendered by the plaintiff.
The evidence clearly shows that the value of the land has been increased from an-average value of about $40 an acre to a value of from $85 to $100 an acre; that in some years before the ditch was dug the farm was almost entirely overflowed, in others the water covered large portions of it; and that the general effect of the drainage improvements has been to render the land much more valuable. It appears, however, that the excavation of the ditches has necessitated lengthy detours in order to reach portions of the land lying on the other side of the ditches from the two dwellings on the farm, and that a small tract of two or three acres is practically inaccessible without a small bridge. The evidence as to the cost of bridges varies from $75 to $200 for a bridge across the lateral and from $500 to $1,600 for the cost of a bridge across the main ditch,.the difference being owing to the material and manner of construction. There is testimony that there are about 200 wooden bridges in the county over similar openings constructed according to the lower estimate. The higher estimates are for steel bridges set upon steel piling.
Plaintiff argues that since, in order to render his land more readily accessible, he will be compelled to build these bridges, while his neighbor within the drainage district, whose land is not intersected by the ditch, receives the same benefits in the increased value of his land but is not subject to this expense or the alternative inconveniences of access, the benefits .are unequally apportioned and the rule which allows such a result is unjust. This is true to some extent, but in the construction of public improvements it is impossible to adjust damages or benefits with mathematical exactness so that each landowner within the district may be treated exactly alike. A farmer whose land lies outside of but adjoins the boundary of the district may be largely benefited by the drainage of the valley, and yet he is not compelled to pay any part of the cost of the improvement. A railroad may make cuts and fills on one man’s land and practically spoil his farm, while it may not touch the land of his neighbor, and yet, by the. location of a station close by, the value of the neighbor’s land may be quadrupled. And so with a street; when a new street is opened the adjoining owners usually receive a large increase in the value of the land abutting upon the street, while other proprietors equally meritorious receive no benefit whatever. Human machinery for administering justice does not work infallibly, and it is impossible to make a rule that will do equal and exact justice in all cases. The principles which have been
It is clear that the plaintiff has suffered no pecuniary damage to the land not actually taken by the ditch.
We find no prejudicial error. The judgment of the district court is
Affirmed.