Kirkendall v. City of Omaha

• Decision Date: 16 January 1894
• Citation: 57 N.W. 752,39 Neb. 1
• Parties: KIRKENDALL ET AL. v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

39 Neb. 1

57 N.W. 752

KIRKENDALL ET AL.

v.CITY OF OMAHA.

Supreme Court of Nebraska.

Jan. 16, 1894.

Syllabus by the Court.

1. After a witness has stated what, in his opinion, had been the effect of changing the grade of a street, upon property adjacent thereto, owned by the plaintiffs in error, it was not reversible error to refuse to allow such witness further to testify that in his opinion no cause other than the said change of grade contributed to an asserted decrease in value of said adjacent property, especially in view of the fact that one of the plaintiffs in error had previously given negative testimony of the same character as that sought to be introduced, which negative testimony was in no way questioned or contradicted upon the trial.

2. It was not error to reject evidence offered as to the general tendency of values of other real property than that of plaintiffs in error, in its vicinity, extending over the period during which, and immediately following that in which, the change of grade complained of was made.

3. The special benefits which may be properly set off against damages are such as increase the value of adjacent property, and these benefits are none the less special because an increased value has been thereby added to many adjacent private properties other than that as to which a particular litigation is pending. Common benefits are such as are enjoyed by the public at large, without reference to the ownership of private property adjacent to the public improvement out of which arose the benefits under consideration.

Error to district court, Douglas county; Hopewell, Judge.

Action by Freeman P. Kirkendall and Charles A. Coe against the city of Omaha to recover for injuries to real property resulting from public improvements. There was judgment for defendant, and plaintiffs bring error. Affirmed.Montgomery, Charlton & Hall, for plaintiffs in error.

A. J. Poppleton, W. J. Connell, and E. J. Cornish, Asst. City Atty., for defendant in error.

RYAN, C.

The plaintiffs in this action, who are the plaintiffs in error in this court, sought in the district court of Douglas county, Neb., a recovery against the defendant on account of alleged injury to their property, in blocks 9 and 12, in West Omaha, caused by the grading of Leavenworth street on the south side of block 12, and the streets connecting therewith, to wit, Thirty-Seventh and Thirty-Eighth streets, extending along the east and west sides of said blocks. The plaintiffs claim that, prior to the establishment and working of said streets to their present grade, their property, described and set out in their petition, was on a high and level elevation of considerable extent, and very desirable and valuable for residence purposes; that, by reason of the grading complained of, deep cuts have been made along the south side of said block 12, and on the east and west sides thereof, and along the south and west sides of block 9, which rendered the whole of said property much less desirable than it was before, and caused the plaintiffs to be damaged in the amount of $25,000, for which judgment was asked. The defendant admitted that it was a municipal corporation, and that the grades of Thirty-Seventh and Thirty-Eighth and Leavenworth and First and Second streets were established as plaintiffs alleged, but denied each and every other allegation of the petition, and denied that said property was damaged on account of said grading. The defendant furthermore claimed in its answer that plaintiffs' property was specially benefited and improved in a sum equal to, or in excess of, any damage sustained by the plaintiffs on account of the grading complained of. The reply of the plaintiffs was in denial of each matter contained in the answer.

1. The first alleged error complained of arises in respect of the introduction of testimony of witnesses Robert Eason, Robert Nields, and D. V. Sholes. To Robert Eason was proposed the question following: “Q. If the grade had been left as it was before the city commenced grading, in 1887, and Leavenworth street had been put to grade there on that basis, what would have been the effect on the market value of the property in general? In other words, was there anything, that you know of, to cause a depreciation in the market value of the property in question, other than the grading of the streets in 1887 and 1888 by the city?” Accompanying this question was a tender of the evidence thereby sought to be elicited, in the following words: “That the only cause of the depreciation in the value of the property in controversy is the grading of the streets complained of, and that in the opinion of the witness there was no other ground for said depreciation.” This witness was not required, in the course of his evidence, to give any estimate as to the value of the property...