City of Chadron v. State
| Decision Date | 09 June 1927 |
| Docket Number | 24896 |
| Citation | 214 N.W. 297,115 Neb. 650 |
| Parties | CITY OF CHADRON, APPELLANT, v. STATE OF NEBRASKA, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Reversed, with directions.
REVERSED.
Greydon L. Nichols, G. T. H. Babcock, E. D. Crites and F. A. Crites for appellant.
O. S Spillman, Attorney General, and Lloyd Dort, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON AND EBERLY, JJ.
The city of Chadron appealed from a dismissal, by the district court for Lancaster county, of its suit against the state. The sovereignty of the state rendering it immune from suit, the plaintiff presented its claim to the legislature of 1923 and was authorized by House Roll No. 718, approved May 3, 1923, to sue. The case was tried to the court under section 1103, Comp. St. 1922, which says that the court "shall hear and determine the matter upon the testimony according to justice and right, as upon the amicable settlement of a controversy, and shall render award and judgment against the claimant, or the state, as upon the testimony right and justice may require."
Chadron, classified as a city of the first class, owns and maintains its own water-works. It has a gravity system, obtaining its water by dams across the creek in the hills about seven miles south of the city. It began its service about 35 years ago with an 8-inch cast-iron pipe line. In 1911 this was supplemented by a 10-inch wood stave line; and supplemented further, about the time the controversy arose, by a new 14-inch wood stave pipe line which is not involved as an item of recovery. Portions of these lines were laid beneath the public roads.
In August, 1920, the state, through its department of public works and the board of county commissioners of Dawes county, as parties of the first part, entered into a contract with a contractor, as party of the second part, to build a road, known as federal aid project number 76A, between Chadron and the south line of Dawes county, of which Chadron is the county seat. This is a part of the highway connecting Alliance and Crawford. In the performance of the work of bringing this road to proper grade, the contractor encountered the iron water pipe and the old stave pipe in several places. The former had been laid about five feet and the latter about four feet underground. There is testimony to show that there were informal conferences between the engineers of the project and the city officials whose duty it was to look after the water supply. There is testimony to the effect that a qualified promise was made by one of the engineers in charge for the state that the city would be reimbursed for damage caused by removal. Informally the city officials told those engaged on the work not to continue to reduce the grade so as to require the taking out of the water pipes. The city took no other steps, except by these conversations, unofficial on both sides save as the participants held the respective offices designated, to stop the grading. The contractor proceeded with his grading, with the result that the city claims about three miles of the stave line were destroyed and about half that quantity of stave pipe line disconnected and so made useless; and that it was put to an expense of nearly $ 2,000 to relay the iron pipe exposed and removed by the grading of the project. It asks damages totaling $ 13,691.92 with interest from January 1, 1921, covering the various items.
When the exigency arose, neither side treated the matter with the seriousness that such a situation would seem to demand. The city did not take action by injunction or otherwise to test the right of those who were in charge of and actually doing the grading to tear out those portions of the pipe lines that obstructed their reduction of the road to the projected grade; nor, to apply the language of the statute, guiding the courts where leave to sue the state is so granted, did those in charge for the state seem to proceed quite "according to justice and right, as upon the amicable settlement of a controversy." The evidence does not show any clear-cut official notice by the state to the city that the state intended to proceed with its grading, that it claimed the legal right to do so, and that the city should protect itself by relaying its pipe lines in advance of the grading. Those in charge of the execution of the project ordered the uncovering and tearing out of the pipes that were in the way. Of course, the qualified promise of the state's engineer in charge, above referred to, could not bind the state. It was not within the scope of his agency. His work was to direct the preparation of the highway for travel in accordance with the plans and the contract entered into to carry those plans into effect.
The main questions arising in this case are: (1) Whether the city of Chadron had such an easement (or other right) in the public road as to be prior in right to that of the public, so that the city could not be required to change the grade of its water pipes at its own expense? If so, then any party desiring them lowered would be liable for the entire expense of taking them out and replacing them, so as to conform to the new grade of the highway. (2) Even if the above question is not answerable in the affirmative, but if, nevertheless, the defendant without proper preliminary notice and without legal warrant destroyed some of the lines and rendered other parts useless, what, if anything, is the defendant's responsibility, and, if the defendant state is liable, what is the proper measure of damages in the particular circumstances of this case?
At the outset it is pertinent to say that the construction and operation of the water-works system by the city was not the exercise of a governmental function, but rather in the nature of a private enterprise for the convenience of the municipality, its inhabitants and property owners. Metropolitan Utilities District v....
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