98 Neb. 671 | Neb. | 1915
Appellant, who will be designated herein as defendant, obtained from the state of Nebraska the right to construct and maintain a dam across the Blue river, in Seward county, on his own land, just below certain contiguous land of plaintiffs, and to appropriate the waters of said stream for power purposes. The construction of the dam caused the waters of the river to overflow the land of plaintiffs. On March 20, 1911, defendant filed in the county court of Seward county a petition for the appointment of appraisers to assess plaintiffs’ damages. Proceedings were duly had and an appraisement made, from which plaintiffs prosecuted an appeal to the district court for Seward county, where a trial was had to a jury. A verdict was returned assessing plaintiff’s damages at $2,052, upon which judgment was rendered, and defendant appeals.
Defendant assigns six separate grounds of error. The first three and the sixth will not be discussed, as we do
The fourth and fifth assignments are: “(4) Where a portion of a farm has been taken under eminent domain, special benefits may be set off against incidental damages shown to have accrued to the residue of the tract. (5) A valuable ice privilege accrued to appellees by the construction of the dam, which did not exist before the appropriation. The right to take ice is appurtenant to the ownership of the bed of the river, which remains in appellees; and such privilege constituted a special benefit, proper to be considered in determining depreciation of the land not taken.”
That the law is as stated in these two assignments is too well settled to require citation of authorities. Upon the trial below defendant attempted to prove by the witness Ashton that the pond created by the dam was a special benefit to plaintiffs by reason of the fact that from year to year the ice which formed on the pond was of great value to plaintiffs. The witness, upon being specifically interrogated, testified that he had knowledge of the use and benefits which plaintiffs would derive by reason of the construction of the dam. He was not cross-examined as to the extent of his knowledge. His competency to testify was therefore sufficiently established. Defendant then offered to prove by the witness the value of the ice privilege. This offer was repeated in a number of different forms. The offers were objected to, on the ground that no sufficient foundation had been laid; that proof of special benefits is incompetent in a condemnation proceeding and not a proper measure of damages, the true measure of dam
Plaintiffs further attempt to justify tbe action of tbe court by assailing tbe probable fairness of Mr. Ashton as a witness, on tbe ground that be is an interested party, and for other reasons urged. These matters would not justify tbe exclusion of tbe testimony of tbe witness. His fairness and credibility were for tbe determination of tbe jury. If be was a man of tbe character indicated, counsel for plaintiffs could doubtless have shown it on cross-examina
It is next contended that the issue of special benefits was submitted to the jury; that there was, in fact, “some evidence” admitted by the court on that issue. The evidence referred to is the testimony of plaintiff Leonard Trabert. We think the fact that Mr. Trabert was permitted to testify upon this point is an aggravation rather than a mitigation of the error. Defendant could not be bound by this testimony of plaintiff when he attempted in a proper manner to refute it by other testimony.
In support of the fourth assignment defendant cites Fremont, E. & M. V. R. Co. v. Whalen, 11 Neb. 585, the second paragraph of the syllabus of which holds: “Special benefits may go to reduce the damages to what remains of the land, but cannot be set off against the value of the part taken.” This is still the rule in this court. In support of assignment No. 5, defendant cites Eidemiller Ice Co. v. Guthrie, 42 Neb. 238, and numerous authorities from other states, all of which sustain the rule for which he contends.
For the reasons above given, the judgment of the district court is reversed and the cause remanded for further proceedings in harmony herewith.
Reversed.