City of Harvard v. Crouch
| Decision Date | 18 February 1896 |
| Docket Number | 6081 |
| Citation | 66 N.W. 276,47 Neb. 133 |
| Parties | CITY OF HARVARD v. L. P. CROUCH, ADMINISTRATOR |
| Court | Nebraska Supreme Court |
ERROR from the district court of Clay county. Tried below before MORRIS, J.
AFFIRMED.
Leslie G. Hurd, for plaintiff in error.
L. P Crouch, contra.
A former opinion in this cause is reported under the title of Hammond v. City of Harvard, 31 Neb. 635, 48 N.W 462. The plaintiff below, Hammond, having died in the meantime, the cause was prosecuted to judgment in the name of L. P. Crouch as administrator. The facts essential to an understanding of the controversy are set out at length in the opinion referred to, and need not be here repeated. It is sufficient for our present purpose that the cause of action alleged is (1) the grading of Clay avenue, in the city of Harvard, so as to collect and discharge the surface water upon the lot of the deceased adjacent thereto, and against a certain brick building situated upon said lot; (2) the raising of the sidewalk in front of the plaintiff's said building from fourteen to sixteen inches above the level of the floor, and exposing it to invasion of the floods at certain seasons of the year.
We have carefully read the evidence in the record and are unable to say that the amount of the verdict, $ 310, is excessive. Were the question an open one for a finding in accordance with what, to us, appears the weight of the evidence, we would feel constrained to assess the plaintiff's damage at a sum considerably less than that awarded by the jury; but, as has frequently been said, a judgment will not be reversed on account of a mere difference of opinion between this court and the trial judge or jury regarding the weight of the evidence.
Exception was taken during the trial in various forms on the ground that the facts alleged and proved do not constitute a cause of action against the city. Such objections appear to rest upon the proposition that the deceased, Hammond, in the construction of the building in question, evidently anticipated the action of the city in the improvement of the street upon which it abuts, and must be held to have contemplated the inconvenience which is naturally incident to such improvement, or, as said in Callender v. Marsh, 1 Pick. [Mass.] 418: "Those who purchase house lots bordering upon streets are supposed to calculate the chance of such elevations and reductions as the increasing population of the city may require. * * * and as their purchase is always voluntary, they may indemnify themselves in the price of the lot which they buy, or take the chance of future improvements, as they shall see fit." Such is undoubtedly the rule of the common law (2 Dillon, Municipal Corporations, secs. 990, 995a); but under our constitution, which prohibits the taking or damaging of private property for public use without compensation, that rule can have no application. (Harmon v. City of Omaha, 17 Neb. 548, 23 N.W. 503; Hammond v. City of Harvard, 31 Neb. 635, 48 N.W. 462; City of Plattsmouth v. Boeck, 32 Neb. 297, 49 N.W. 167.) And the views expressed in the cases cited are in harmony with the decisions of other courts under like constitutional provisions. (City Council of Montgomery v Townsend, 80 Ala. 489, 2 So. 155; Hot Springs R. Co. v. Williamson, 45 Ark. 429; City of Atlanta v. Green, 67 Ga. 386; City of Fort Worth v. Howard, 3 Tex. Civ. App. 537, 22 S.W. 1059; Davis v. Missouri P. R. Co., 119 Mo. 180, 24 S.W. 777.)
Among other instructions asked by the defendant below, and refused, is one to the effect that the purchaser of property abutting upon a street is presumed to have consented to such changes in the surface...
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