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BURLEY . THE STATE.

we stop? Could not every provision of the law be disregarded with just as much reason, and the judge select the jury in his own way, and of the material best suited to the accomplishment of his own purposes? The grand jury must be selected in the manner prescribed by the law. There is no security to the citizen but in a rigid adherence to the legislative will, as expressed in the statutes made for our guidance.

The judgment is reversed and cause remanded to the District Court for Lincoln county, for further proceedings.

THE MIDLAND PACIFIC RAILROAD CO. v. MCCARTNEY.

The Midland Pacific Railroad Co. v. McCartney.

1. PRACTICE: Verdict. The appellate court will presume the verdict of the jury sustained by the evidence, unless the contrary fully appear.

2.

3.

All the evidence adduced on the trial should be preserved in the bill of exceptions, and the fact be accordingly stated, in order to justify a claim that the court below erred in refusing a new trial, asked for on the ground that the verdict was not sustained by sufficient evidence

-: Motion for new trial. Errors in the admission or refusal of testimony on the trial and in giving or refusing instructions to the jury will be considered as waived, unless complaint thereof be made in the motion for a new trial.

This was a petition in error filed in this court by the Midland Pacific Railroad Company. The facts are fully stated in the opinion except the single one that a motion for a new trial was filed in the court below, and that errors assigned in the petition in error are not included in the motion.

S. H. Calhoun and John H. Croxton, for plaintiff in error.

The line of plaintiff's railway crosses the defendant's land. Defendant refused to give the right of way across the same. Appraisers, appointed as required by the laws of Nebraska, on actual view appraised the same. From this appraisement defendant appealed to the District Court of the First Judicial District, in and for the county. On a trial in said court, before a jury, the damage was reassessed. In this trial plaintiff claims that there was error, as set forth in their petition in error filed in this court.

The plaintiff holds the true rule of the assessment of damages in cases of this kind to be: That the jury shall confine themselves to estimating real value of the land taken, without going into any conjectural and speculative

THE MIDLAND PACIFIC RAILROAD CO. v. MCCARTNEY.

estimations of consequential damages. And this can only be truly and fairly done by determining the value of the whole land without the railway, and the portion remaining after the railway is built. The difference is the true assessment of the damages-the true compensation to which the owner is entitled, except when there is some special benefit resulting or accruing to the remainder of the land by reason of the location and operation of the railway through or over the same; in which case the amount of such special benefit is to be deducted from the amount of the damage so ascertained. The remainder, if anything, will be the amount of damage which the owner of the land would be entitled to receive. Henry v. The Dubuque & Pacific Railway Co., 2 Iowa, 288; Meacham v. Fitchburg Railway, 4 Cush. 291; Upton v. South Reading Railway, 8 Cush. 600; Albany N. Railway v. Lansing, 16 Barb. 68; Canandaigua & N. Railway v. Payne, 16 Barb. 273; Greenville & C. Railway v. Partlow, 5 Rich. 428; White v. Charlotte & S. C. Railroad Co., 6 Rich. 47; A. & S. Railway Co. v. Carpenter, 14 Ill. 190; Symonds v. Cincinnati, 14 Ohio, 147; Brown v. Cincinnati, 14 Ohio, 541; McIntire v. State, 5 Blackf. 384; State v. Digby, 5 Blackf. 543; Troy & Boston Rail. way v. Lee, 13 Barb. 169-71; Matter of F Street, 17 Wend. 649; Canal Co. v. Archer, 9 Gill & J. 480; Parks v. City of Boston, 15 Pick. 198; Somerville Railway v. Doughty, 2 Zab. 495; Columbus P. & J. Railway v. Simpson, 5 Ohio St. 251; Rochester & Syracuse Railway v. Budlong, 6 How. Pr. 467; Sater v. B. & Mt. Pl. Railway, 1 Clarke, 386; Harvey v. Lackawana & Bloomsburg Railway, 47 Penn. St. 428; Win. & St. Peter's Railway v. Denman, 10 Minn. 267; Whitman v. Boston & Maine Railway, 3 Allen, 133; Livermore v. Jamaica, 23 Vt. 362; Indiana Central Railway v. Hunter, 8 Ind. 74; Robbins v. Milw. & Hor. Railway Co., 6 Wis. 636; Nashville Railway v.

THE MIDLAND PACIFIC RAILROAD CO. v. MCCARTNEY.

Dickerson, 17 B. Mon. 173-180; Louisville & Nashville Railway v. Thompson, 18 B. Mon. 735.

The rule governing the admission of evidence seems to be to allow only strictly legal evidence to be received, such as would be admissable in the trial of similar questions before a jury in ordinary cases.-1 Redfield on Railw. sec. 72; Troy & Boston Railway v. Northern Turnpike Co., 16 Barb. 100; Rochester & Syracuse Railway v. Budlong, 6 How. Pr. 467; Lincoln v. Saratoga & Schenectady Rail way, 23 Wend. 425, 32.

And the witnesses cannot be allowed to give their opin ion of the value of the land or material taken.-Montgomery & West Point Railway v. Varner, 19 Alab. 485; Concord Railway v. Greely, 3 Foster, 237; Buffman v. New York & Boston Railway, 4 Rh. I. 221; Cleveland & Pittsburgh Railway v. Vanhorn, 18 Ill. 257; Dorlan v. E. Br. & Wav. Railway Co., 46 Penn. St. 520; East Pa. Railway Co. v. Heister, 40 Penn. St. 53; East Penn. Railway Co. v. Hottensteine, 47 Penn. St. 28.

Preliminary surveys may be made without compensation.-1 Redfield Railway, sec. 66, p. 241; Cushman v. Smith, 34 Maine, 247; Polly v. S. W. Railway Co., 9 Barb. 449; Bloodgood v. Mohawk & H. Railway, 14 Wend. 51; S. C. 18 Wend. 9; Statutes revised, of Nebras ka, sec. 81, p. 217.

Who shall go forward in the pleadings, proof and argument, on the trial.-1 Greenleaf Evi. scc. 76, 77; Connecticut River Railway v. Clapp, 1 Cush. 559; 1 American Railway cases, 450; Mercer v. Whall, 52 Q. B. 447; 1 Redfield Railway, sec. 71, p. 268.

The fact that a juror is a citizen of a town, city or county, and tax payer therein, against which suit is brought to recover judgment, does not render him incompetent to sit as a juror in that suit; nor does the fact that a man is a tax payer and citizen of a town, city, or county which may

THE MIDLAND PACIFIC RAILROAD Co. v. MCCARTNEY.

be liable, or may become liable to pay the judgment in a

him incompetent to sit as He has no such interest in

given case, if rendered, render a juror in the trial of that case. the event of the suit as will incapacitate him to sit as a juror.-Comms. of Clermont Co. v. Little, 3 Ohio, 289.

Party claiming damages must show title.-Henry v. The Dubuque & Pacific Railway Co., 2 Iowa, 288.

I. N. Shambaugh, for defendant in error.

The defendant in error insists that no errors were committed by the court below, and relies upon the following points and authorities :

I. But two points are made in the motion for a new trial, and none others will be considered by this court. All the errors complained of must be assigned and relied on in the motion for a new trial, and if the attention of the court below is not called to the same by such motion, will be considered waived.-4 Mo. 544; 6 Mo. 162; 9 Mo. 493; 10 Mo. 515; 11 Mo. 623; 13 Mo. 444, 453; Hilliard on New Trials, 12 and 16.

The

The motion for a new trial was properly overruled. damages are not excessive.-20 Mo. 272, 567; 21 Mo. 354.

The evidence fully sustains the verdict, and this court will not set aside a verdict if there is any evidence to support it.-1 Mo. 13; 3 Mo. 464; 7 Mo. 292, 220, 445; 4 Mo. 295; 5 Mo. 489; 6 Mo. 489, 61, 211; 8 Mo. 642; 9 Mo. 268; Mo. 380; 19 Mo. 241; 11 Mo. 264; Hilliard on New Trials, 340; 6 Ohio, 456; 12 Ohio, 151; 4 Ohio, 566; 2 Ohio, 44, 53; 12 O. S. 146.

But if the rulings of the court below upon the other points made in the plaintiff's petition were properly before this court for consideration and review, the defendant insists that no errors were committed by the court below, and relies upon the following points and authorities :

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