F., E. & M. V. R. Co. v. Meeker. from an award of damages by commissioners under the statute, for land of plaintiff, which plaintiff claims the defendant has taken for its right of way in the construction of its road and for the alleged injury to that part of plaintiff's land not taken. The defendant denies that it has taken for right of way any portion of plaintiff's land, or that, by the construction and operation of its road, any portion of plaintiff's land has been injured. "Second-The jury are instructed that unless the evidence shows that a part of the land of plaintiff was necessary for the construction and operation of the road, they must find for defendant. "Third-The jury are instructed that the plaintiff is not entitled to any damages whatever by reason of his being cut off from other parts of the town, and in considering the damages you will not take into consideration any evidence that may tend to show damages by reason of the plaintiff being cut off from other parts of the town by reason of the defendant's railroad. "Fourth-The jury are instructed that it is incumbent upon the plaintiff to prove either that a part of his land was taken by the defendant's railroad, or that it is necessary for the location, construction, and operation of the defendant's railroad; and if they find from the evidence that plaintiff has failed to prove such fact, they must find for the defend ant. "Fifth-The jury are instructed that an incidental injury to property, resulting from the lawful exercise of an independent right, is never held to be a taking of the property where the enjoyment of the right of and privilege does not involve an actual interference or disturbance on any of the property right; and if the jury find that the plaintiff in this case has not in any way been disturbed in his property rights, and is left free to cultivate and improve his land and premises, they must find for the defendant. "Sixth-If you find from the evidence that it was neces F., E. & M. V. R. Co. v. Meeker. sary for the defendant, in the proper construction of its road, to deposit, upon the plaintiff's land, the dirt taken from the cut made for its road-bed, and that the defendant did deposit said dirt upon plaintiff's land, not occupied by the public road, this would be evidence of a taking on the part of the defendant; if it was not necessary in the proper construction of its road to so deposit its dirt, then the deposit of said dirt would not be evidence of taking of plaintiff's land.” The court also, on its own motion, gave a number of instructions, to which no objection was made. The questions of fact were thus submitted to the jury. In M. P. R. R. Co. v. Hayes, 15 Neb., 224, it was held that, "In making such assessment, it is proper to consider the way in which the road cuts the land, the inconvenient shape in which the residue is left, the excavations and embankments, and the exposure of the owner's property to particular injuries from its proximity to the road, which may result from its proper construction and operation ;" and in Chicago, K. & N. Ry. v. Wiebe, 25 Neb., 542, that “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." The cases above cited state the law correctly, as we believe, and they will be adhered to. There is considerable stress laid upon certain evidence in regard to the embankment and bridge near the house of the defendant in error, but no particular instruction was asked or given in regard to that nor apparently any foundation upon which to predicate error. The third instruction, given at the request of the railway company, apparently was intended to apply to the obstruction in the public road caused by the excavation in question. The bridge is not mentioned. Whether 28 100 57 303 28 100 61 855 Smiley v. Anderson. the case of Chicago, K. & N. Ry. Co. v. Wiebe, 25 Neb., 542, is applicable to the facts of this case, the obstruction in street being connected with the property taken, we need not determine. That the land owner has sustained a very considerable amount of damages by reason of the location and grading of the railway of the plaintiff in error is clearly shown, and as the questions were submitted to the jury, we cannot interfere with the verdict. Some of the instructions given at the request of the railway company are probably too favorable to the company to be an accurate statement of the law, but that question is not before the court. In a number of cases this court has held that questions of damage for right of way were peculiarly of a local nature, proper for the consideration of a jury of the county where the land is situated. (Omaha Belt Ry. Co. v. Johnson, 24 Neb., 707; Clarke v. C., K. & N. R. R. Co., 23 Id., 616.) There is no material error apparent in the record, and the judgment is affirmed. THE other judges concur. JUDGMENT AFFIRMED. JOHN A. SMILEY V. WILLIAM ANDERSON. [FILED NOVEMBER 26, 1889.] 1. Assumpsit: PLEADING: QUESTION OF FACT. In an action to recover the value of certain services the defendant in his answer alleged that "the plaintiff never performed the services claimed at defendant's request and defendant never promised to pay for any such services," held, an admission that the services were rendered as claimed, but the question whether they were volun tary or rendered at the defendant's request must be determined by the jury from the evidence. 2. Instructions examined, and held, applicable to the evidence. Smiley v. Anderson. ERROR to the district court for Douglas county. Tried below before WAKELEY, J. Savage, Morris & Davis, for plaintiff in error. No brief filed. Lee S. Estelle, contra, cited: Hohman v. Steele, 18 Neb., 652; Churchill v. Holton, 38 Minn., 519; Ludlow v. Dole, 62 N. Y., 617. MAXWELL, J. This action is brought by the defendant in error against the plaintiff in error to recover the value of certain services which it is alleged he rendered at the plaintiff in error's request. It is alleged in the petition that "The plaintiff entered into the service of the defendant, at his request, as agent, to negotiate with the Belt Line Railway Company, now known as the Missouri Pacific Railway Company, for the purpose of bringing about a settlement between the said John A. Smiley and the railway company, the said defendant John A. Smiley then claiming damages from the said railway company for lands taken from the said John A. Smiley for the right of way for the track of said railway company; that said plaintiff continued in the service of said defendant until March 20, 1887; that during said time plaintiff performed services as agent for said defendant, and that the difference between the said John A. Smiley and the said railway company was finally compromised, the said railway company paying the said Smiley the sum of $8,500; that said defendant agreed to pay to said plaintiff for said services such sum as they were reasonably worth, and in addition thereto five per cent of all sums recovered from or paid by said railroad company to said John A. Smiley; that said services were Smiley v. Ander-on. reasonably worth $100 per month; that five per cent of the sum recovered by Smiley from said railroad company is $425; that there is now due from said defendant to said plaintiff the sum of $1,425, with interest from March 20, 1887." To this petition Smiley filed an answer, in which he alleges that "The plaintiff never performed the services claimed at defendant's request, and defendant never promised to pay for any such services." On the trial of the cause the jury returned a verdict for $200, in favor of Anderson, upon which judgment was rendered. It will be observed that the rendering of the services as claimed is admitted, and the only question for determination is, Were such services rendered at Smiley's request? Upon that point the proof is abundant, and fully sustains the verdict. The court instructed the jury that "If a person requests another to perform services for him, and there be no agreement as to whether they shall be paid for or not, then, unless it appears from the circumstances that there is a mutual understanding between the parties, that the services shall be rendered gratuitously, the law implies that there shall be a reasonable compensation paid therefor." But if it appears that there was such understanding, and the services are rendered pursuant thereto, the person rendering them is entitled to recover compensation therefor. This was fully warranted by the evidence and there was no error in giving it. The seventh instruction is objected to. It is as follows: "In determining what is a reasonable compensation for the services, if you have occasion to do so, you may consider all the facts in regard to them, and what the parties may have said to each other as to compensation, although no witness has given an opinion as to the value thereof." There is testimony in the record tending to show that Smiley had promised to pay Ander |