Omaha & North Western Railroad v. Menk , 4 Neb. 21 ( 1875 )

Lake, Ch. J.

That such an action as this can be maintained cannot be doubted, where the damages are not deposited with the probate judge as the statute requires. The owner of the land thus appropriated has his election either to bring his action for the amount of the award, to enjoin the operating of the road across his premises until payment is made, or to sue in trespass for the unauthorized entry upon his premises.

But it is urged as a fatal objection to this award that it contains a provision that Menk should have the privilege of removing his dwelling house from the condemned premises. It is true that this mode of estimating damages is not contemplated in the statute, and why it was adopted in this particular instance is not disclosed by the record. Very likely it was done at the instance of both parties, who may have considered the house of much greater value to Menk than it could possibly be to the company. At all events I must conclude that the award was satisfactory when made, as neither party saw fit to get rid of it by an ap]Deal to the district court. There is no force in this objection.

The only remaining objection worthy of notice, is, that the finding and judgment of the court is not sustained by sufficient evidence. But it is a sufficient answer to this objection to say, that the record does not purport to contain all the testimony submitted to the judge who tried the cause. To justify a re-examination of a question of fact in this court, it must be shown affirmatively that the entire evidence adduced on the trial below is brought up for inspection here. It is not enough to state, as-is done here, that it is “the substance of the evidence introduced, bearing upon the issues.” It may be true that all the evidence which the court considered relevant, or material to the issues, has been preserved. But it is not at all times an easy tiling to determine whether particular testimony ought to be admitted or rejected, or whether if received, it should be given any weight in the decision of the case. ■ The only safe rule undoubtedly is to require all the evidence to be preserved, and that the record shall disclose the fact that it has been done. But even if the rule were otherwise, and we should take the evidence contained in this record, as all that could have had any legitimate hearing on the issues presented, still I could not hesitate to declare that the finding of the judge is fully sustained, and that no other rational conclusion could have been drawn therefrom, than the one reached by him.

The judgment of the District Court is clearly right and must he in all things affirmed.

Judgment affirmed.

Mr. Justice Gantt, concurred. Mr. Justice Maxwell, having tried the cause in the court below, did not sit.