#### James F. Martin v. Fillmore County.

Filed April 5, 1895.

No. 6195.

1. Bill of Exceptions: Authentication of Documents. In order to authenticate a document attached to a record as the bill of exceptions settled in the district court there must be a certificate of the clerk of the court to that effect. *Moore v. Waterman,*40 Neb., 498, followed.

2.-: Authority of Clerk to Sign: Stipulation. The mere stipulation of counsel that the clerk of the court may sign and allow a bill of exceptions is not sufficient to confer authority upon him to do so. In order to confer such authority it must appear that the judge is dead ; that he is prevented by sickness or absence from signing and allowing the bill; or the parties or their counsel must agree upon the bill of exceptions and attach thereto their written stipulation to that effect. *Scott v. Spencer,*42 Neb., 632, followed.

3. Eminent Domain: Counties: Drainage: Damages. Where land is appropriated for public use the owner thereof is entitled to recover the value of the land appropriated without any deduction for benefits. In addition thereto he should recover any damages sustained by that portion of the land not appropriated and. as against the latter item, special benefits but not general benefits may be set off. *1 Wagner v. Gage County,*3 Neb., 237.)

4. -: -: -: -. The foregoing is a rule interpreting that clause of the constitution providing that the property of no person shall be taken or damaged for public use without just compensation therefor, and' it is beyond the power of the legislature to change the rule.

5. -: -: -: -. To constitute an appropriation of land it is not necessary that the owner be deprived of the fee. Land is appropriated when it is so taken as to deprive the owner of the use thereof. It is only when the owner is not deprived of the occupancy of the land, but merely suffers an incidental damage thereto because of the proximity of the improvement, that benefits may be set off against such damage.

6.--:-:-:-: Pleading. Therefore, where the petition alleged that a county ditch had been constructed through and across the plaintiff’s land and the answer admitted that fact, no payment being pleaded, a verdict allowing the plaintiff no damages is contrary to law.

*720Error from the districtcourt of Fillmore county. Tried below before Hastings, J.

*J. D. Hamilton*and *John D. Carson,*for plaintiff in error.

*Charles H. Sloan, contra.*

Irvine, C.'

The plaintiff in error was plaintiff in the district court and alleged in his petition, in brief, that he was the owner of certain land in Fillmore county; that a petition in due form had been filed with the board of supervisors praying that a county ditch be constructed, in its course crossing the plaintiff’s land; that no sufficient notice was given of the filing and pendency of such petition, but without such notice the prayer of the petitioners was granted; that the plaintiff had no notice of such proceedings; that the ditch was constructed across his land; that he filed a cláim of damages before the board of supervisors, which was allowed to the extent of $50; that this proceeding was an appeal from the order making such allowance; that his land was damaged to the amount of $1,000, for which sum he prayed judgment. The petition had attached thereto as exhibits certified copies of the-proceedings of the supervisors concerning said ditch. The county answered denying all allegations not specifically admitted, then alleging affirmatively that the ditch ran through the plaintiff’s land, and while it caused some damage the benefits therefrom to said land exceeded the damage, and that the plaintiff was therefore entitled to recover nothing. The answer further alleged that due notice had been given, and that the plaintiff neglected to file his claim within the time provided by law. There was a trial to a jury and a verdict for the defendant, on which judgment was entered, and the plaintiff prosecutes error.

*721It is urged that the verdict is not sustained by sufficient -evidence, and one other assignment relates to a matter occurring on the trial. There is attached to the transcript what purports to be a bill of exceptions, but there nowhere appears any certificate of the clerk authenticating this document as the original, or as a copy of the bill. Such a certificate is necessary for the authentication of the record. (Code Civil Procedure, sec. *587b; Moore v.*Waterman, 40 Neb., 498.) Furthermore, what purports to be a bill of exceptions purports also to be settled by the clerk of the court under a stipulation precisely similar to that set out in the opinion in *Scott v.*Spencer, 42 Neb., 632. It was in that case held that the mere stipulation of counsel that the •clerk of the court may sign and allow a bill of exceptions is not sufficient to confer authority on him to do so. To confer such, authority it must appear either that the judge is dead; that he is prevented either by sickness or absence from his district from signing and allowing the bill; or the parties or their counsel must agree upon the bill and attach thereto their written stipulation to that effect. A stipulation that the clerk may settle the bill without a stipulation that the bill submitted is agreed to is insufficient to confer .authority upon the clerk in the premises. We cannot, therefore, examine either of the assignments of error referred to.

. Error is assigned upon the giving of instructions 8, 9,10, 11, and 12. The language of the assignment is the same as in *Hiatt v. Kinkaid,*40 Neb., 178. The twelfth instruction states the familiar rule that in such cases general benefits may not be set off against damages sustained. This instruction was undoubtedly correct. *(Schaller v. City of Omaha,*23 Neb., 325.) This instruction being correct the whole assignment must be overruled.

Another assignment is to the giving of instruction No. 2 asked by the defendant. The record contains an instruction numbered 2, but it does not appear whether it was *722given by the court of its own motion or at the request of one of the parties. The record also shows that the instruction was modified and only a portion thereof given,, and we cannot ascertain how much was given. Error,, therefore, does not appear in' this respect.

While we are thus precluded from examining many of the questions presented, we still think that the judgment must be reversed. One assignment is that the verdict is contrary to law. The petition alleges and the answer expressly admits that the ditch was constructed through and across the plaintiff's land. The verdict was absolute for the defendant. Under no possible state of the evidence could this verdict be right. The court instructed the jury, and we must presume correctly, that no proceedings had been taken which would preclude the plaintiff from maintaining his action. Payment of compensation was not pleaded. The plaintiff was, therefore, entitled as one item of damages to recover the value of the land actually appropriated for the construction of the ditch. Against this item of damages no benefits could be set off. In addition thereto he was entitled to recover any damages sustained by the land not appropriated, and as against the latter item special benefits, but not general benefits, might be set off, provided that the use for which the appropriation was made was a public use and within the power of eminent domain, — a question not here raised and not decided. *(Wagner v. Gage County,*3 Neb., 237; *Fremont, E. & M. V. R. Co. v. Whalen,*11 Neb., *585; Chicago, K. & N. R. Co. v. Wiebe,*25 Neb., 542; *City of Omaha v. Howell Lumber Co.,*30 Neb., 633.) The foregoing is a rule interpreting that clause of the constitution providing that the property of no person shall be taken or damaged for public use without just compensation therefor. Whether the act providing for the construction of such ditches (Comp. Stats., ch. 89) contemplates an assessment of damages in accordance with this rule is immaterial to the case. It is beyond the power-*723of the legislature to change it. The district court seems-to have proceeded upon the theory that no land was actually appropriated, but this is contrary to the pleadings. To-constitute an appropriation of land it is not necessary that the owner be divested of the fee. Land is appropriated when its *corpus*is seized and devoted to the improvement so as to deprive the owner of the use of the land. The nature of the estate in the land which is appropriated may-possibly affect the amount of recovery, but does not affect the right to recover. It is only when the owner is not deprived of the occupancy of the land, but merely suffers an* incidental damage thereto owing to the proximity of the-improvement, that benefits may be set- off against such damage. Wherever the owner by the seizure of his land1 is deprived of the occupancy thereof he is entitled to recover absolutely the value of the land so taken or of such estate therein as is appropriated. The ditch could not have been constructed across plaintiff’s land without an appropriation of some part thereof and under the pleadings, therefore, the plaintiff was entitled to a verdict in some amount.

Counsel attempt, in their briefs, to draw a distinction-between the measure of- damages in the case of condemnation proceedings and in a ease where the county has entered without instituting any such proceedings. As the-case must be remanded for a new trial it may be well to-say that we do not conceive this distinction to be well founded. The rule of damages, as above stated, applies to-every case of the appropriation or damage of property for public use without regard to the nature of the proceedings, in which recovery is sought.

Reversed and remanded.