Cather & Sons Const., Inc. v. City of Lincoln

• Decision Date: 05 April 1978
• Docket Number: No. 41263,41263
• Citation: 200 Neb. 510,264 N.W.2d 413
• Parties: CATHER & SONS CONSTRUCTION, INC., Appellant, v. The CITY OF LINCOLN, Nebraska, Appellee, and Goodyear Tire & Rubber Company, Intervenor-Appellee.
• Court: Nebraska Supreme Court

Page 413

264 N.W.2d 413

200 Neb. 510

CATHER & SONS CONSTRUCTION, INC., Appellant, v. The CITY OF LINCOLN, Nebraska, Appellee, and Goodyear Tire & Rubber Company, Intervenor-Appellee.

No. 41263.

Supreme Court of Nebraska.

April 5, 1978.

Syllabus by the Court

1. The exercise of a city council's discretionary power to vacate streets and alleys is not ordinarily subject to judicial review unless there has been an abuse of discretion, fraud, a glaring informality or illegality in proceedings, or an absence of jurisdiction.

2. A property owner whose property does not abut upon a portion of a street which a municipality proposes to vacate or obstruct has no right of action to restrain the vacation or prevent the obstruction unless the access to his property is interfered with and he suffers a special or peculiar damage differing in kind from that of the general public.

3. To overturn a city ordinance on the ground that it invades a private right, the evidence of such fact must be clear and satisfactory. A party seeking an injunction must establish by competent evidence every fact necessary to entitle him to relief, and injunction will not lie unless the right is clear, the damage irreparable, and the remedy at law is inadequate to prevent failure to justice.

4. In the absence of illegality, fraud, or a clear abuse of discretion on the part of municipal officers in the exercise of their discretionary power to dispose of municipal property, the sale of such property will not be restrained in equity.

5. To warrant this court in interfering with a sale of municipal property by municipal officers acting within the scope of their statutory authority, the evidence should be such as to show with reasonable certainty that their action could not be construed as having been taken with a view of the general public welfare.

6. A municipality may not make a gift of its property to private persons for purposes other than corporate ones, and may not sell its property for wholly inadequate consideration such that a gift is in fact being made.

Edward F. Carter, Jr., of Barney & Carter, P. C., Lincoln, for appellant.

Charles D. Humble, City Atty., William F. Austin, Chief Asst. City Atty., Lincoln, brief of The City of Lincoln, Nebraska.

J. Taylor Greer, of Woods, Aitken, Smith, Greer, Overcash & Spangler, Lincoln, for appellee the Goodyear Tire & Rubber Co.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

BRODKEY, Justice.

This action involves a dispute arising out of the vacation of portions of streets and an alley by the City of Lincoln, defendant and appellee herein, and the sale of the vacated property by the City to The Goodyear Tire & Rubber Company ("Goodyear"), intervener and appellee herein. The plaintiff and appellant, Cather & Sons Construction, Inc. ("Cather"), objected to the vacation and sale at a public hearing before the city council of Lincoln. Over Cather's objections, the council, by unanimous vote, passed ordinances authorizing the vacation and sale of the property. Cather then filed a petition on appeal in the District Court for Lancaster County pursuant to sections 15-1201 to 15-1205, R.R.S. 1943.

In its petition on appeal in the District Court, Cather set forth three separate causes of action. In the first cause of action Cather alleged that the vacation of the streets was not in the public interest and therefore invalid because it blocked traffic flow, diverted commercial and industrial traffic onto streets in residential areas, and deprived Cather means of ingress to and egress from its property. In the second cause of action Cather alleged that the consideration paid by Goodyear to the City of Lincoln, for the vacated property, was inadequate and less than its true market value. In the third cause of action Cather alleged that the vacation and sale denied it reasonably convenient ingress to and egress from its property, that Cather had not consented to the vacation, and that the City had not condemned Cather's rights with respect to reasonable ingress and egress, as required by section 15-702.03, R.R.S. 1943. Cather alleged its property abutted the vacated land. It prayed that the District Court find the ordinances authorizing the vacation and sale null and void, and enjoin the implementation of those ordinances. In the alternative, Cather prayed that the court appoint appraisers in condemnation to determine the value of the right of access taken from it by the City as a result of the vacation, and to award damages therefor. Goodyear was permitted to intervene in the action, and both it and the City of Lincoln denied the material allegations of Cather's petition on file.

After presentation of evidence by the parties and an inspection of the land involved in the vacation and sale, the trial court concluded that Cather's claims were not meritorious for several reasons: First, because the court found that Cather did not have standing to maintain its first and third causes of action for the reason it was not an owner of property abutting the vacated land; second, the court found that Cather had not suffered damage different in kind from that suffered by the general public as a result of the vacation, and that Cather still has reasonable access to the street system and reasonable ingress to and egress from its property; and, third, the trial court concluded that the evidence was not sufficient to sustain a finding that the purchase price paid by Goodyear to the City for the vacated land was the product of fraud, illegality, or a clear abuse of discretion on the part of the city council. Finally, the court concluded that Cather's third cause of action was not properly raised in the proceeding because it interjected a new matter into the appeal that was not raised before the city council at the time the ordinances were discussed and passed. Cather's petition on appeal was dismissed by the District Court.

Cather has now appealed to this court, contending that the findings of the trial court were erroneous, and that the trial court erred in failing to grant the relief prayed for in Cather's petition on appeal. We affirm the dismissal of Cather's petition on appeal.

The facts relevant to this appeal are as follows. Goodyear owns land on the west side of North 56th Street between Ballard and Morrill Avenues in Lincoln, Nebraska. In February 1974, Goodyear and other adjacent property owners petitioned the city council of Lincoln to vacate North 56th Street between those avenues, a small portion of the avenues immediately to the east of North 56th Street, and a portion of an alley. Goodyear desired to purchase the property, if vacated, for the purpose of building a new warehouse which could be served by existing railroad facilities. Various city departments made reports and recommendations concerning the proposed vacation and sale. The Lincoln Lancaster Planning Commission and the Director of the Department of Public Works recommended approval of the vacation, subject to conditions concerning the relocation of utilities and the construction of cul-de- sacs or other acceptable vehicle "turnarounds" at what would become the stub ends of Ballard and Morrill Avenues, and North 56th Street. Ordinances authorizing the vacation and sale were presented to the city council, which, after a public hearing, unanimously voted to pass the ordinances. The purchase price of the vacated land was $9,434.80. One week after the ordinances were passed, Cather offered to purchase the vacated property for the sum of $30,000, which offer was refused by the council. The City conveyed the vacated land to Goodyear, which has constructed a building thereon.

Cather's objections to the vacation, as set forth both at the public hearing held before the city council and in the District Court, were that it denied reasonable access to Cather's property, that it forced industrial traffic onto streets in residential neighborhoods, and that it denied Cather the most convenient route to its property. A description of Cather's property is required to clarify these claims.

Cather owns a triangular shaped plot of land, the south edge of which borders on Ballard Avenue. The land comes to a point approximately 50 feet east of the northeast corner of the intersection of North 56th Street and Ballard Avenue. There is a driveway, hereinafter referred to as the "southwest driveway," which provides access to Cather's property from Ballard Avenue at this point. This is one of several driveways on the Cather property, which has been used for the operation of an asphalt batch plant. Large transport trucks which deliver liquid asphalt to a storage tank on the Cather property have used the southwest driveway as a means of ingress. Before the vacation, the trucks would usually proceed north on North 56th Street, turn right on to Ballard Avenue, and enter the Cather property at the southwest driveway. This means of ingress was particularly useful to Cather due to the location of the storage tank, as the trucks could enter the Cather property via the southwest driveway, be in proper position for unloading, and then leave the property via an exit on the opposite end of the property without turning around and without engaging in any difficult maneuvers.

It is undisputed that Cather's property does not "front," nor is it adjacent to, the vacated portions of Ballard Avenue and North 56th Street. Only 50 feet of Ballard Avenue to the east of North 56th Street was vacated, precisely to the point where the south edge of the Cather property begins to border on Ballard Avenue. The southwest corner of the Cather property does touch, at a single point, the northeast corner of the vacated portion of Ballard Avenue. The vacation did not, therefore, block any driveway providing access to the Cather property. The result of the vacation was that Cather's southwest driveway is now at the west end of Ballard Avenue, what...