Aro Inv. Co. v. City of Omaha

• Decision Date: 14 January 1966
• Docket Number: No. 35956,35956
• Citation: 179 Neb. 569,139 N.W.2d 349
• Parties: ARO INVESTMENT COMPANY, a Corporation, Appellee, v. CITY OF OMAHA, Nebraska, a Municipal Corporation, in the State of Nebraska, Appellant, Impleaded with Harry Trustin et al., Appellees.
• Court: Nebraska Supreme Court

Page 349

139 N.W.2d 349

179 Neb. 569

ARO INVESTMENT COMPANY, a Corporation, Appellee, v. CITY OF OMAHA, Nebraska, a Municipal Corporation, in the State of Nebraska, Appellant Impleaded with Harry Trustin et al., Appellees.

No. 35956.

Supreme Court of Nebraska.

Jan. 14, 1966.

Syllabus by the Court

1. A party seeking an injunction must establish by competent evidence every controverted fact necessary to entitle him to relief, for injunction will not lie unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.

2. It is not necessary that a municipality accept and open a street for public use until public necessity requires it.

3. Even though a dedication of a street is accepted by the city, until the city manifests some intent to use it or it has been used as a street there is no public use and no rights will accrue in said street as against the city.

4. It is not essential that there should be any prescribed formal declaration but there must be use or some other act indicating its status as a street by those authorized in such matters to represent the public to complete the dedication.

5. Vacated Thirty-sixth Street was never opened, improved, maintained, or used in any manner as a street. Consequently the plaintiff and its predecessors in interest could not acquire any interest therein which would force the city to use said street or permit the plaintiff to contest its vacation.

Herbert M. Fitle, City Atty., Bernard E. Vinardi, Deputy City Atty., Frederick A. Brown, Edward M. Stein, Sebastian J. Todero, Walter J. Matejka, Frederick S. Geihs, Omaha, for appellant.

Jack W. Marer, Seymour L. Smith, Omaha, for Aro Inv. Co.

Kelley, Grant & Costello, Michael J. Dugan, Omaha, for Harry Trustin et al.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, and McCOWN, JJ.

SPENCER, Justice.

This is an action brought by the Aro Investment Company, a corporation, hereinafter referred to as plaintiff, against the city of Omaha, the mayor and the members of the city council, and the property owners abutting on the sides of what will hereinafter be designated as vacated Thirty-sixth Street. The action is to restrain the enforcement of ordinance No. 22375 of the city of Omaha vacating and closing Thirty-sixth Street from Frances Street to a point 87 feet south of Frances Street in the city of Omaha, hereinafter designated as vacated Thirty-sixth Street, and for a declaration of the rights of the parties under the city charter and under the Constitutions of the United States and the State of Nebraska. The district court found generally for the plaintiff, subject to specific findings of fact and conclusions of law which it is not necessary to set out herein. The defendant city of Omaha has appealed and for convenience will hereinafter be designated as defendant.

Club Terrace Addition to the city of Omaha was dedicated and accepted by the city many years ago. All streets in the addition were opened, improved, and used except vacated Thirty-sixth Street, which has never been opened or used as a street. On the plat it is an 87-foot extension of Thirty-sixth Street south of Frances Street, and dead ends on the south edge of Club Terrace Addition. Plaintiff's property, which is now zoned as industrial property, except for the 'nub' described later, lies 20 feet south of and parallel to the south line of Club Terrace Addition on the south. Its ownership antedates the vacation ordinance but no the plat of Club Terrace Addition. Plaintiff's property includes a 'nub' the but not the plat of Club Terrace Addition. adjoins the dead end of the street on the south and connects with plaintiff's property 20 feet south of the south line of Club Terrace Addition. Plaintiff alleges this 'nub' was purchased for the purpose of providing access to and from plaintiff's property lying immediately south of it, which comprises a rectangle 613 feet north and south by 241 feet east and west, to Thirty-sixth Street. This 'nub' is not and never has been a part of Club Terrace Addition. There is a 20 to 25 foot difference in grade between the residences to the side of vacated Thirty-sixth Street and the industrial tract owned by the plaintiff. It was the testimony of the city planning director that any grade for a street would have to be extremely steep. Plaintiff's property is bordered on the south by Martha Street and on the east by an alley with access to both Martha Street and Frances Street. The plaintiff has improved the southern portion of its property and the judgment of the trial court applies only to the north 203 feet. The following plat will clarify the location and the relative positions of the property involved.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Three individuals who owned all of the property on both sides of vacated Thirty-sixth Street initiated the vacation proceedings by petition. They were made parties herein, but did not appeal from the judgment of the trial court. The vacation was approved by the plainning board, who recommended it to the city council over the objections and protest of the plaintiff. The objections and the protest were sent to the city council with the recommendation. The city council held a hearing at which plaintiff was represented by counsel and produced witnesses in opposition to the proposed ordinance. After the adoption of the ordinance, plaintiff filed this collateral attack upon it.

The district court...