Clarke v. Nemaha Valley Drainage District No. 2

Letton, J.

Appraisers were appointed under ad quod damnum proceedings prosecuted for the appellant drainage district to appraise damages to the land of appellee. An appeal was taken from their award to the district court. Pleadings were filed in that court, which were afterwards withdrawn, and the case tried to a jury upon the transcript from the county court.

During the trial, after testifying to the quantity of land taken and its reasonable value, tbe appellee was asked: “I will ask you to state wbat, if any, assessment you have paid to tbe defendant upon your land in sections 9 and 4.” This question was objected to as incompetent, not a jjroper measure of damages, not a matter at issue in the case, and not witbin tbe pleadings. Tbe objection was overruled. Other evidence was admitted over objection along tbe same line. Tbe court instructed tbe jury that, in addition to tbe fair market value of tbe land taken tbe plaintiff was entitled to recover tbe assessment paid by bim on tbe land so taken. Tbe jury returned a general verdict and special findings. Tbe special findings set forth tbe amount of tbe land taken, and tbe value per acre, and also that “we allow said plaintiff $96.38 as special tax paid by bim on sections 9 and 4, and $21.37 as special tax paid by bim on section 30, * * and $32.76 as special tax paid by said plaintiff on section 31.”

Tbe appellant complains that tbe amount of special taxes paid is not witbin tbe issues in this proceeding, nor a part of tbe true measure of damages; that tbe only matters which can be considered in tbe district court on appeal from tbe award of a board of appraisers are those which tbe board of appraisers are entitled to consider, and those alone. This question has already been settled in this court. In Burlington & M. R. R. Co. v. Schluntz, 14 Neb. 421, it is said: “Tbe appeal brought to tbe district court, for decision by a jury, precisely tbe same questions that were covered by tbe award, and none other. Matters which tbe commissioners could not properly have considered to enhance tbe amount of their award were not proper to be given to tbe jury to affect their verdict.” In Gerrard v. Omaha, N. & B. H. R. Co., 14 Neb. 270, and in Trester v. Missouri P. R. Co., 33 Neb. 172, it is held that, on an appeal to tbe district court from tbe appraisement of damages, if other issues than tbe question of damages are involved, they must be presented by proper pleadings.

Both parties concede that, in case the appellant’s contention is sustained, it will be unnecessary to set aside the judgment to its full extent.

The judgment of the district court is reversed, unless appellee file a remittitur of the amount found due for special taxes paid within 40 days, in which case the judgment will he *

Affirmed.

Hamer, J., not sitting.