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how it would divide the farms of appellees, or what effect it
would have upon the uses to which the land was appropriated,
and no different effect could have been produced upon the mind
of a jury by the instruction under consideration than would have
resulted if the instruction had been properly guarded by requir-
ing them to find the fact. We have so repeatedly held that an
error which has produced no injury will not be ground for re-
versal, that citation of authority is unnecessary.

The witnesses for appellee, upon cross-examination, among
other reasons given for their estimate of damages, stated they
included the damages from fire, etc., by reason of the
•ffM^ftmnlire. Operation of the railroad through these farms. Ap-
pellant objected to the evidence, which objection was
overruled, and appellant excepted. No motion was made to
exclude the evidence in chief of the witnesses; but instructions
were asked, and refused by the court, to the effect that the in-



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EMINENT DOMAIN — CONSEQUENTIAL DAMAGES. 641

creased danger and hazard to buildings, etc., from fire by reason
of the operation of the road, should not be considered by the
jury as an element of damage. There was ao error in this rul-
ing. If, by reason of the proximity of buildings, fences, and the
like, to the track of the railroStd, the market value of the farms
as a whole was depreciated ; or if, from the ordinary and usual
manner of the operation of the road, the danger from fire had a
tendency to lessen the value of the premises for sale, or for the
use to which they were appropriated by the owner, or to which
they were adapted, — that fact would become an important ele-
ment in fixing the just compensation to be awarded the owner
for the appropriation of his land to the uses of appellant com-
pany. Authorities supra. Finding no errors in this record, the
judgment is affirmed.

Emine'nt Domain — Elements of Damage. — As to. see, an/^,Dovrd v. Mason
City & F. D. R. Co., 633, and note, 637..

Same— Failure to Fence.— Acts Va. 1883-84, c. 524. § 6, provides that,
where railroads run through inclosed farms, and the company has paid to
the owner of the land damages for making fences on each side, and for
keeping them in repair, the provisions of the act imposing a penalty on
the company for failure to build and keep such fences in repair shall not
apply. It also provides that no report of commissioners appointed to as-
sess damages shall be taken as proof of such payment unless it appear
from the face of the report, or other sufficient evidence, that an estimate
was made for the fencing, and that the cost of the same constituted a part
of the sum reported and paid, //M, that the company have not the op-
tion of fencing the roadbed or suffering the penalty, but that an assess-
ment of damages, in the report of commissioners, allowing for the cost
of fencing, is proper and binding. Norfolk & W. R. Co. v. Stephens (Va.).
7*S. E. Rep. 251 ; see also Centralia & C. R. Co. z/. Rixman, 30 Am. &
Eng. R. R. Cas. 336, note 338.

Same — Consequential Damages. — Respecting consequential damages,
see 6 Am. & Eng. Encyc. of L., tit. " Eminent Domain," VI, and VIII, pp.
542-563. 597.

Same — Danger from Fire. — In those cases where the value of buildings
for the purpose of a residence, for business, or sale, is diminished by the
effect of continual liability to take fire because of proximity of the rail-
road, such danger entitles the owner to recover damages therefor. St.
Louis, J; & C. R. Co. V. Springfield & N. W. R. Co., 96 111. 274,- Lafayette,
M. & B. R. Co. V. Murdock. 68 Ind. 137 ; Swinney v. Ft. Wayne, M. & C.
R. Co., 59 Ind. 205; Kansas City & E. R. Co. v, Kregelo, 32 Knn. 608;
s. c, 20 Am. & Eng. R. R. Cas. 241 ; Pierce v. Worcester & N. R. Co.,
105 Mass. 199; Colvill 7/. St. Paul & C. R. Co., 19 Minn. 283: Adden v.
White Mts. N. H. R. Co.. 55 N. H. 413; s. c, 20 Am. Rep. 220; In re
Utica, C. & S. V. R., 56 Barb. (N. Y.) 456; Oregon & C. R. v. Barlow, 3
Greg. 311 ; Wilmington & C. R. v. Stauflfer. 60 Pa. St. 374.

The increase of the cost of insurance in such cases may also be givan in
evidence as affecting the amount of damages to be allowed. Webber v.
Eastern R., 43 Mass. (2 Mete.) 147 ; Wooster v. Sugar R. Valley R. Co., 57
Wis. 311 ; s. c, 10 Am. & Eng. R. R. Cas. 499.

If the 'danger of fire is so great as to render it necessary to remove the
building, the cost of such removal is to be considered in estimating the
damages. Oregon & C. R. Co. v. Barlow, 3 Oreg. 311.
ae A. & E. R. R. Cas.— 41



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642 CHICAGO, KANSAS AND NEBRASKA R. CO. V. WIEBE.

The fact that the railroad company is responsible for all damages
whether resulting from negligence or otherwise, does not defeat the land-
owner's right of recovery. Keithsburg & E. R. v. Henry, 79 111. 290;
Bangor & P. R. v. «McComb, 60 Me. 290 ; Pierce v. Worcester & N. R.
Co., 105 Mass. 199; Adden v. White Mts. N. H. R. Co., 55 N. H. 413;
s. c, 20 Am. Rep. 220; Somerville & E. R. ?'. Doughty. 22 N. J. L. (2Zab.)
495. But such liability of the company may be taken in consideration as
affecting the amount of the damage to be recovered. Bangor & P. R. Co.
V. McComb, 60 Me. 290.

The danj^er must be real and imminent, and must be to buildings that are
in proximity to the road, not those which are situated at a distance.
Jones V. Chicago & T. R., 68 111. 380; St. Louis & S. R. v. Teiers, 68 III.
144; Proprietors of Locks and Canals 7/. Nashua & L. R. Corp., 64 Mass.
(10 Cush.) 385; Hatch 7/. Cincinnati & 1 R., 18 Ohio St. 92.

In some states, compensation has been refused. Lance v. Chicago, M.
& St. P. R. Co., 57 Iowa, 636; s. c. 5 Am. & Eng. R. R. Cas. 617; Rode-
macher z/. Milwaukee & St. P. R., 41 Iowa. 297; s. c, 20 Am. Rep. 592;
/n re Union Village & J. R. Co.. 53 Barb. (N. Y.) 457; s. c. 35 How.
(N. Y.) Pr. 420; Wilmington & C. R. v, Stauffer. 60 Pa. St. 374; Patten
V, Northern Central R., 33 Pa. St. 426; s. c, 75 Am. Dec. 612; Lehigh
Valley R. v. Lazarus. 28 Pa. St. 203 ; Sunbury & E. R. v. Hummell, 27 Pa.
St. 99; Ontario & Q. R. Co. v, Taylor, 6 Ont. Q. B. Div. 338; s. c, 17
Am. & Eng. R. R. Cas. 100. See also note, 33 Am. & Eng. R. R. Cas. 213;
Cedar Rapids, etc., R. Co. v, Raymond, 30 lb. 345, note 348.



Chicago, Kansas and Nebraska R. Co.

V.

WiEBE.

{Nebraska Supreme Court, January ^ 1889.)

Appeal — Evidence Without Objection — Review. — Where evidence is intro*
duced without objection to prove certain, facts, a party cannot predicate
error thereon ; and the same rule will apply if a party excepts to the in-
troduction of certain evidence, and afterwards introduces the evidence
objected to, or that of a like character.

Same — Evidence In Party's Favor — Review. — An instruction in a party's
favor is not ground for reversing a judgment against him.

Eminent Domain — Amount of Damages— Diminution of Value. — In an
appeal from the award of damages sustained by a land-owner from the
location of a railway across his land, he is entitled to full compensation for
the land actually taken, and for such damages to the residue of the land
as are equivalent to the diminution in value thereof; general benefits not
to be considered.

Same— Instructions. — Instructions sent out in the opinion, held^ to be
substantially correct.

Error to District- Court, Gage County; APPELGET, Judge.
Action by the Chicago, Kansas & Nebraska R. Co. against



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EMINENT DOMAIN— DAMAGES— DIMINUTION OF VALUE. 643

J. G. Wiebe, to condemn the right of way across defendant's
land. From a judgment for defendant, plaintiff brings error.

Hazlitt & Bates, and Step/ten S. Brown for plaintiff in error.

G^ggs ^ Rinaker for defendant in error.

Maxwell, J. — In August, 1886, the defendant in error was
possessed of a strip of land west of Third street, in the city of
Beatrice. This trip was about 1000 feet in length ^

and from 126 to 166 feet in width, there being some
controvery as to the exact width. This strip, for 558 feet south
from the north line, was inclosed with a fence at the date in
question, and the defendant in error had in such inclosure a
lumber-yard, dwelling house, etc. At the time mentioned, the
plaintiff in error instituted proceedings to condemn the right of
way across said strip south of the inclosure. The commissioners
appointed, after an examination of the property, allowed the de-
fendant in error $2407. The railway company appealed to the
district court, where, on the trial, a verdict was returned for the
sum of $2418.11, with interest from November 4, 1886, amount-
ing in all to $2584.13. A motion for a new trial having been
overruled, judgment was entered on the verdict. A number of
objections are made to the introduction of certain evidence ; but
an examination of the transcript shows that nearly all such evi-
dence was introduced without objection, and that evidence
similar to that objected to was introduced by the plaintiff in
error. The alleged errors, therefore, cannot be considered. The
testimony of the defendant in error, and also that of the plain-
tiff in error, tends to show that the defendant in error sustained
a large amount of damages by reason of the location and con-
struction of the road in question and the verdict being within
the values as proved, it will not be disturbed on the ground
that the evidence is insufficient. In addition to the evidence
preserved in the bill of exceptions which was presented to the
jury, the court permitted the jury to view the premises in con-
troversy, and see for themselves the injury occasioned to the
defendant in error by the location of the road across his land.
A plat accompanying the bill of exceptions shows that the rail-
way is located on a line running norteast and southwest, near the
middle of that portion of the tract which is south of the inclosure
heretofore spoken of. The railway company contends that the
court erred in giving and refusing certain instructions. The ob-
jections will be noticed in their order."

The court, at the request of the plaintiff below, instructed the
jury " that, in estimating the damages occasioned by the con-
struotion of defendant's road through plaintiff's premises, they
are not to be limited to damages done to said premises south of
the fence running east and west across the same, and near the



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644 OHIOAGO, KANSAS AND NEBRASKA R. 00. V, WIEBB.

middle thereof ; but if they believe from the evidence in this
iBRtractioii M ^^^^ ^^^^ ^^^^ premises north of said fence were
to dttiuftgiM to also damaged by the construction of said road through
entire prem- gaid premises, they must consider, in fixing, the
****** amount of plaintiff's recovery, ail damages occasioned

by the said construction of said road, to plaintiffs entire prem-
iscs.*' , .

The testimony shows that this land of the defendant in error
was not laid off into lots and blocks, the north 558 feet being
inclosed. Had there been no inclosure, it cannot be questioned
that the defendant in error would have been entitled to damages
for the entire tract if such damages were proved. There was
testimony tending to show that the location and construction
of the road would depreciate the value of the entire premises.
This testimony was proper to submit to the jury. The court, in
effect, said to the jury that, if they believed from the evidence
that the premises north of the fence were damaged by the con-
struction of the road through said land, they might allow for
such damages. This, we think, is a correct statement of the
law.

Objection is also made to the third instruction, given at the
request of the plaintiff below, which is as follows: "The court
instructs the jury that, although they may find from
tolwaefltr** the evidence in this case that all property in the vi-
cinity of plaintiff's premises through which defend-
ants road runs experienced a general increase in* value by reason
of the construction of the defendant's road, and that plaintiffs
premises shared in such general increase, still they must not
deduct such increase in the value of plaintiff's premises from
the damages done to the said premises by the construction of
defendant's road through them, nor are they permitted to con-
sider said increased value of said premises for the purpose of
reducing plaintiff's damages." This instruction was correct.
All the cases seem to concur in excluding mere general and
public benefits which the owner of the land shares in common
with the rest of the inhabitants of the vicinity. Wagner v. Gage
Co., 3 Neb. 242; Schaller z^.- Omaha, 23 Neb. ^25.

Objection is made to the fifth instruction, given at the request
of the plaintiff below, which is as follows: "The court instructs
the jury that, in estimating plaintiff's damages, they
inRtrnciion should Consider how the taking of plaintiff's land
f^Inehi'wsor ^iffects thc tract, considering the tract as a whole,
tract, and just as it was, with all conveniences and fran-

chises which thc evidence shows it to have had at the
time when the land in question was appropriated." Just what
is meant by the "franchises" is not very clear. The remainder
of the instruction seems to be unobjectionable, and we are unable



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KMIKENT DOMAIN — DAMAGES — DIMINUTION OF VALUE. 645

to see that the word " franchises" could in any event prejudice
the plaintiff in error. We do not see that the jury could have
been misled by the use of the word.

The court also instructed the jury generally upon the question
before them, as follows : " The thing for you to determine in this
case is the amount of damages plaintiff has sustained
by reason of the defendant's appropriation of its rail- Genemi in-
road right of way over the plaintiff's premises, gnd the J^nMtiwTof"
proper construction and operation of such railroad, damagea.
This damage consists of two elements, namely: (i)
The valu eof the land actually taken, and (2) the damage, if any,
to the part of the plaintiff's premises not taken. You should
ascertain the value of the part of plaintifTs premises actually
taken, and allow that. Then you. should determine whether the
part taken has been damaged. 14 you find that a part or parts
of the plaintiff's premises through which the railroad right of
way was appropriated by defendant, has been damaged by the
appropriation, you should ascertain the amount of such damages
to the part or parts not taken, and add the same to the value of
the part taken ; and if that sum is equal to the amount of the
assessment of damages in the proceedings in the county court,
then you should add interest at 7 per cent per annum from the
time of the condemnation, which was August 23d ; but if you
<]o not find the amount of the dam'i.ges to be as much as con-
tained in said assessment below, then you should not add any in-
terest. The damages to the part or parts of the premises not ac-
tually taken are to be arrived at without deduction for general
benefits to the premises by reason of the building of the railroad,
such as are common to and shared in by other lands in that
locality that are not damaged, because it would not be just to de-
prive this plaintiff, whose land is crossed by the railroad, of such
general benefits which his neighbors whose lands are not taken
get free of charge. (3) Inasmuch as considerable has been said
about the street-crossing over the said railroad where it crosses
Third street, it is deemed useful to instruct you that the railroad
is bound to build and maintain a good and sufficient crossing
and approaches over their said railroad, and to conform as near
as practicable to grade of said street. If they fail to do so, or
have failed to do so, a separate and another action will lie because
of such failure ; but the same is not a part of this action, whose
basis, cause, and foundation are fully and sufficiently stated
above in these instructions. If by reason of the railroad's cross-
ing said street, the plaintiff has been deprived of a public right,
which he has enjoyed in connection with his premises, and in
conseqifence thereof he sustains damages in excess of that shared
by the public generally, he can in another action recover for such
excess, but not in this action, which is not only for the damages



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646 CHICAGO, KANSAS AND NEBRASKA B. 00. V. WIEBK.

to plaintiff's premises by reason of the defendant s appropri-
ation of its right of way through the plaintiff's premises, and the
proper consideration and operation of such railroad, — ^all of
which is more particularly stated above."

Objection is mad to the first of these instructions because it
is too indefinite. But it does not appear to be open to that
objection. The second seems to be unobjection-
**"eu'r'«oft ^^'^» while the third is favorable to the plaintiff in
erraMMai!* error. In assessing damages to a land-owner for a
right of way located over his land for a railroad, he
is entitled to all the damages which he will sustain by reason
of the location, proper construction, and careful operation of
' the road across the same. Railroad Co. v, Whalen, 1 1 Neb.
585. All such damages, therefore, must be determined in the
condemnation proceedings, or they cannot be recovered. But
it cannot be assumed in advance that a railway will be improp-
erly constructed or carelessly operated, or, if so, what damages
would result from such causes; hence they cannot be consid-
ered in the condemnation proceedings. But a cause of action
arises in favor of the party when he sustains an injury from the
improper construction of the road, or its negligent operation.
The instruction complained of, therefore, withdrew from the
jury matters in regard to the tract in question which would have
been proper for them to Consider as affecting its value. The
claim here is not for damages to detached real estate, wholly
separate from the tract affected by the condemnation proceed-
ings, as it joins to the tract affected, and is one of the conve-
niences which gives it value. The instruction, therefore, was in
favor of the plaintiff in error.

The railway company asked the court to give the following
instructions, which were refused : " In assessing the damages in
this case, the jury will not take into consideration any trouble,
expense, or inconvenience caused plaintiff in error passing along
Third street, between his lumber-yard and the B. & M. switch,
by any change in the grade of said street made by defendant
in the construction of its railroad across said street, nor any
other damage which they may believe was caused by such
change of grade. The jury will take into consideration only
such damages as result to plaintiff's land by the taking and ap-
propriating of a portion thereof, for the purpose of the con-
struction, maintenance, and operation of a railroad thereon, and
not such damages as may be sustained by plaintiff, in common
with other persons in the community no portion of whose lands
are taken for the construction, maintenance, or operation of
plaintiff's road." It will be observed that the first part of the
first of said proposed instructions had already been given, and
that the latter part, "nor any other damages which they may



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EMINENT DOMAIN — DAMAGES— DIMINUTION OF VALUE. 647

«

believe was caused by such change of grade/' is entirely too
vague and indefinite, and was calculated to mislead the jury.
The court, therefore, did not err in refusing the first of said
proposed instructions.

The second instruction asked is open to the same objection
as the other; and in addition to this, there is no testimony
as to the damages sustained by other parties from the causes
alleged. The court did not err, therefore, in refusing the second
instruction asked. The law relating to damages for right of
way should be so construed as to do justice between the parties.
A railway company has an almost unlimited right in locating
its lines. The land-owner has but little choice in the matter, as
the statute authorizes a corporation, formed under the laws
of the state, to take, hold, and appropriate so much real estate
as may be necessary for the location, construction, and con-
venient use of its road." Therefore, if it is necessary, in the
location of a railroad, to cross a farm or plot of ground in such
a way as to mar it beauty or greatly diminish its value, the
land-owner must submit, because the public good requires that
he shall do so. Thelaw, however, guarantees him just compensa-
tion for his property taken or damaged. Now, when is a party
justly compensated for injuries sustained ? The answer must be,
only when he has been fully paid for such injuries. In Schaller
V, Omaha, 23 Neb. 332 ; 36 N. W. Rep. 533, it was held that the
words "just compensation for property damaged" were just as
broad in signification as where the property was taken. It is
said a " different rule injects words into the constitution which
are not found there, and puts a forced construction upon its
language." In that opinion the history of the amendment i^
given from the writer's personal knowledge of the subject.
The amendment was not copied from any other constitution,
but was inserted to secure justice ; and this court will endeavor
so to construe it as to give to every one his just rights. The
measure of damages, therefore, as stated by the court in its in-
structions, appears to be correct ; and as two juries of the county,
from personal inspection of the premises, have returned verdicts
for nearly the same amounts, we must presume from these facts,
as well as from the evidence before us, that the verdict is cor-
rect. There is no material error in the record, and the judg-
ment is affirmed. The judges concur.

Eminent Domain — Diminution of Value. — Where property has been in-
juriously affected but not part of it taken, the owner is entitled to recover
for those injuries which are direct in their nature, and which are peculiar
to him. See Keitlisburg & E. R. Co, v, Henry. 79 III. 290; Ham v, Wis-
consin. I. & N. R. Co., 61 Iowa. 716; s. c, 14 Am. & Eng. R. R. Cas. 204.;
Rogers v. Kennebec & P. R. Co.. 35 Me. 319 ; Prestrey v. Old Colony & N.
R. Co., 103 Mass. I ; Chicago, M. & E. R. Co. v, Ritter, 10 Am. & Eng. R.



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648 CARROLL V. WISCONSIN CENTRAL R. CO.

R. Cas. 222; Gulf. C. & S. F. R. Co.t/. Fuller, 63 Tex. 467; s. c, 22 Am. &
Eng. R. R. Cas. 1 54.

Where the value of the prenjises is reduced on account of an obstruction
caused by a public improvement, the measure of damages is the diminu-
tion in value caused by such obstruction. See Hot Springs R. Co. 2/. Tvler.
36 Ark. 205 ; s. c, 10 Am. & Eng. R. R. Cas. 145 ; Blesch v. Chicago i N.
W. R. Co., 43 Wis. 183 ; Chapman v. Oshkosh & M. R. Co., 33 Wis. 629.
See Gear v. C. C. & D. R. Co.. 39 Iowa, 23.

Same — Diminution of Business.— In an action for damages resulting from
the construction of a railroad across plaintiff's hotel property, evidence
that the construction of the road will diminish the business of the hotel is
admissible only to aid the jury in determining the weight of direct testi-
mony of depreciated value. Laflin v. Chicago, W. & N. R. Co., 33 Fed.
Rep. 415.



Carroll

V.

Wisconsin Central R. Co.

(Minnesota Supreme Court, February 11, 1889.)

Eminent Domain— Consequential Damages— Noise and 8moko. - No
action lies against a railroad company for the inconveniences necessarily
caused to premises in the vicinity, by noises, smoke, jarring of the ground,
etc., arising from properly and prudently operating its railroad upon its
own lands, or upon land in which the party complaining has no interest.

« Appeal from District Court, Ramsey County ; Brill, Judge.

Action by James Carroll against the Wisconsin Central R.
Co., for injuries resulting to plaintifif from the operation of the
road. Judgment for defendant, and plaintiff appeals.

5. L. Pierce for appellant.

Lusk & Bunn for respondent.

GiLFlLLAN, C.J. — Previous decisions of this court fully dis-
pose of the question presented in this case. We will refer to
two of them. In«Rochette v. Railway Co., 32 Minn.
PreTioniide- 201 ; s. c, 1 7 Am. & Eng. R. R. Cas. 192, it was held
i^Dg q^B^fcUon." th^^ ^^ action by a land-owner lies for the damage



Online LibraryUnited States. CourtsThe American and English railroad cases; a collection of all the railroad cases in the courts of last resort in America and England [1879?-1895] .. → online text (page 78 of 90)