61 Iowa 187 | Iowa | 1883
of their discussion by defendant’s counsel. It was shown by the evidence that the title of sepa- „ _ . , rate portions ot the lot, the damage to which was ° assessed by the commissioners, was held by each plaintiff. They both live in the same house, situated tqmn the lot in question. It is insisted that, as plaintiffs are several owners of the property, they cannot prosecute this action jointly. It will be observed that the proceedings were instituted by- the city, and that the damage to the whole lot was assessed in a gross sum. The plaintiffs jointly appeal, making no objection to the failure of the city to assess the damage separately to the portions of the lot owned by the respective plaintiffs. They thus waive all error or irregularity in the proceedings, resulting from the assessment in gross. They cannot hereafter urge objections to the proceedings; and, should they do' so, they would be estopped by their waiver of the irregularity. Having recovered a judgment rendered in their favor jointly, they-are bound by it as though their interest were joint; and they cannot separately prosecute the city to again recover. The city cannot, therefore,, suffer
“3. In determining the market value of the property before the change, if any you find, you will carefully weigh all the evidence introduced as to that subject, the location of the property, its surroundings and desirability and situation as to grade' before the change, and when you have done this in the light of what you yourselves have seen, fix its market value before the change of grade.
“You will then as carefully weigh the evidence in the light of your inspection of the premises as it is after the change in grade of streets, and in doing so you will consider what it will cost to raise the improvement, if anything, and all the 'facts and circumstances given in evidence, and from this proof fix the market value of the property after the change in grade. The difference between these sums, if in favor of plaintiffs, is the true measure of damages.”
To this instruction defendant’s counsel makes two objections. The first is based uj>on the ground that the jurors are made witnesses in the case by the language of the instruction, directing them to consider the evidence “in the light” of what they had seen, and “in the light” of their inspection of the premises. This was permitted to enable them more fully to understand and weigh the evidence. The instruction directs that they should consider the evidence in the light of
Affirmed,