Burkley v. City of Omaha

• Decision Date: 16 March 1918
• Docket Number: 19883
• Citation: 167 N.W. 72,102 Neb. 308
• Parties: FRANCIS J. BURKLEY, APPELLEE, v. CITY OF OMAHA, APPELLANT
• Court: Nebraska Supreme Court

167 N.W. 72

102 Neb. 308

FRANCIS J. BURKLEY, APPELLEE, v. CITY OF OMAHA, APPELLANT

No. 19883

Supreme Court of Nebraska

March 16, 1918

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Reversed and dismissed.

Judgment of the trial court reversed and cause dismissed.

John A Rine and W. C. Lambert, for appellant.

Mahoney & Kennedy and Guy C. Kiddoo, contra.

CORNISH J. SEDGWICK, J., not sitting.

OPINION

CORNISH, J.

Plaintiff's property was located some 20 feet from a cross street, which was so graded by the defendant city as to make the street in front of his property impassable at the point where it meets the cross street, leaving plaintiff's property in what is denominated a cul-de-sac, or "blind alley." The plaintiff, refusing to accept as in full the damages awarded him in proceedings by the city at the time the city graded the cross street, and failing to prosecute an appeal therefrom, brought this separate action for damages, and recovered judgment therefor, from which the defendant appeals.

Plaintiff's property did not abut upon the part of the street vacated. In Lee v. City of McCook, 82 Neb. 26, 116 N.W. 955, it is held: "Where a part of a street is vacated, the general rule is that only those property owners whose property abuts upon the vacated part of the street, and who are thus cut off from access to their property, are entitled to damages on account of such vacation." In the body of the opinion, quoting from the opinion in Enders v. Friday, 78 Neb. 510, 111 N.W. 140, it is said (p. 29): "'The general rule is that only those property owners whose property abuts upon that part of the street, and who are thus cut off from access to their property, are entitled to damages on account of such vacation.' It would follow, therefore, that the plaintiffs suffered no wrong that would be actionable at law for damages. The only injuries they sustain are such as are common to the community generally. It is true that it is alleged that the appellant Lee will suffer damages, and that his ice plant will be practically destroyed; but the nature of the injury he sustains is not different from that sustained by other persons. He, like others, may be compelled to travel a greater distance in order to reach the north part of the city." See, also, Van Valkenberg v. Rutherford, 92 Neb. 803, 139 N.W. 652, and Jones v. City of Aurora, 97 Neb. 825, 151 N.W. 958. In the case last cited, the plaintiff owned three lots, one of which abutted on the side street vacated. The court said (p. 830): "The three lots are used as one tract, having common improvements, and, in assessing damages, must be treated as a single piece of property." This holding is not inconsistent with former holdings. In the body of the opinion the decision in Vanderburgh v. City of Minneapolis, 98 Minn. 329, 108 N.W. 480, is cited as one where the facts were analogous, and in which it was held that, where one's property is made to front on a cul-de-sac, his injury is different, not only in degree but in kind, from others. How far the court approved of this holding is not further shown. The question involved was not at all necessary to the decision. So long as the damages sustained depend upon being "compelled to travel a greater distance in order to reach" other parts of the city, it would seem that the difference in damages is one of degree and not of kind. The damages to the person located in a cul-de-sac may not be appreciably more, may be substantially less, than the damages to the person located a block away from him on the same street. This court has heretofore recognized the fact that all the property owners in one part of town may be appreciably and substantially damaged, whereas the public generally will not be damaged at all, but benefited. When one's property abuts upon the street vacated, he clearly stands upon a different footing. His easement is taken away from him and his use of the property may be destroyed altogether. Gillespie v. City of South Omaha, 79 Neb. 441, 112 N.W. 582, is cited by plaintiff. In this case, "the city closed L street (the street in front of plaintiff's property) from Thirty-eighth street west to Thirty-ninth street, and vacated the south half of L street between Thirty-eighth and Thirty-ninth streets." Here, too, the damages suffered were different in kind from that of the community generally. The easement of the street in front of plaintiff's property was taken in part for the building of a viaduct.

All public improvements are liable to be beneficial to some and damaging to others. Even the changing of the location of a post office will affect the ownership of property unequally. It is a better rule to hold that people purchasing property must contemplate public improvements of this character and make their purchases upon such basis. The making of improvements should not be imperiled by the danger of whole neighborhoods bringing suits for damages.

At the time the improvement at the cross street was ordered in this case, the defendant city, through its special tribunal created for that purpose, undertook to determine the damages occasioned by the grading of the street. The law, under which the proceedings for appraisement and assessment of damages were had, provided for an appeal from the assessment to the district court, and provided further that "the remedy by appeal herein allowed shall be deemed and held to be exclusive." Rev. St. 1913, sec. 4398. "The decision of a special tribunal, where it has jurisdiction of the subject matter and parties, is conclusive, unless reversed and modified in the mode provided by law." State v. Nelson, 21 Neb. 572, 32 N.W. 589.

In this case an appeal was attempted, but no valid appeal taken. The plaintiff contends that the proceedings for appraisement of damages were vitiated by the violation of constitutional rights and statutory requirements. We will consider the objections made as they appear in the brief:

(1) It is said that the procedure was void because the law made no provision for notice to the owner (plaintiff) and an opportunity for him to be heard. If the law were unconstitutional because it made no provision for notice or hearing, it is very likely that proceedings had under it would be void. Section 4089, Rev. St. 1913 (Omaha charter), provides as follows: "When by this chapter the power is conferred upon the mayor and council to do and perform any act or thing, and the manner of exercising such power is not specially pointed out, the mayor and council may provide by ordinance the details necessary for the full exercise of such power." In pursuance of this enactment the city did pass an ordinance providing for "notice (to the property owners) of the time, place and purpose" of the hearing. The plaintiff did have notice of the meeting and appeared. We are of opinion, therefore, that there is no merit in this contention.

(2) It is contended that the proceedings are void because the city proceeded neither by resolution nor ordinance, as required by sections 4306, 4309, Rev. St. 1913. Under these sections of the law, the city acquires jurisdiction to grade the street either by published resolution, declaring the necessity of grading, and giving property owners 30 days in which to protest, or by ordinance after the filing of the petition of a certain per cent. of the property owners. We are of opinion that the resolution of February 1, declaring it "expedient and necessary" to grade Twenty-fourth street, which was published as provided by the law constitutes a sufficient...