City of Lincoln v. Grant

CourtSupreme Court of Nebraska
Citation38 Neb. 369,56 N.W. 995
PartiesCITY OF LINCOLN v. GRANT.
Decision Date21 November 1893

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Although the right to recover for damage to private property is reserved by the constitution, it is within the power of the legislature to regulate the remedy, and prescribe the forms to be observed in order to enforce that right. The only limitation upon the power of the legislature, in that respect, is that the regulation must be reasonable, and provided by general laws of uniform application.

2. The provision of section 36 of the charter of the city of Lincoln, that, in order to maintain an action against said city for an unliquidated demand, the claimant shall, within three months from the time such right of action accrued, file with the city clerk a statement of the time, place, and circumstance of the injury or damage, is a reasonable exercise of the legislative powers.

3. The filing of the required statement is in the nature of a condition precedent, and must be alleged and proved, in order to maintain an action, in such cases.

Error to district court, Lancaster county; Tibbets, Judge.

Action by Patrick J. Grant against the city of Lincoln to recover damages alleged to have been sustained because of a change in grade of streets. Plaintiff had judgment, and defendant brings error. Reversed.N. C. Abbott, City Atty., (Abbott, Selleck & Lane, of counsel,) for plaintiff in error.

R. Cunningham, for defendant in error.

POST, J.

This was an action by the defendant in error in the district court of Lancaster county against the plaintiff in error, the city of Lincoln. In the petition below, it is alleged that the plaintiff therein is the owner of lots 14 and 15 in block 69 in said city; that in the year 1886 the city changed the grade of Ninth and M streets, adjacent to said lots, by reason of which said streets were lowered from two to seven feet below the grade which had previously been established; that in the year 1889 the city, by its agents and servants, actually lowered said streets so as to conform to the grade established in 1886, to the damage of the plaintiff in the sum of $1,200. It is further alleged that in the month of February, 1890, the plaintiff presented to the city council a claim in writing, duly verified, for the sum of $1,200, on account of the lowering of the streets above named, adjacent to his said property, which is the amount of damages actually sustained by him, but that his said claim was wholly rejected and disallowed. The city filed an answer, in which it challenged the jurisdiction of the district court on the ground that the plaintiff's only remedy was by appeal from the order disallowing his claim. It admits that it caused Ninth and M streets to be graded, curbed, and paved in the year 1889, but denies that the plaintiff has been damaged thereby, and alleges that said improvement is of special benefit to his said property, which has increased in value by reason thereof $2,000, and denies the other allegations of the petition. A trial resulted in a verdict and judgment for the plaintiff below in the sum of $500, whereupon the cause was removed to this court by petition in error.

The first proposition of the plaintiff in error is that, under the provisions of the charter of 1889 of the city, all claims, whether arising ex contractu or ex delicto, must be presented to the city council, and, when disallowed, the remedy by appeal is exclusive. That proposition we will not consider at this time, since the judgment must be reversed on other grounds.

The second proposition upon which reliance is placed by the city is that the failure of the plaintiff below to file with the city council a statement, in writing, showing the time, place, and character of the damage complained, etc., is fatal, and a complete defense to his action. Section 36 of the city's charter, as amended in 1889, (section 36, c. 13a, Comp. St. Ed. 1889,) concludes as follows: “And to maintain an action against said city for any unliquidated claim, it shall be necessary that the party file in the office of the city clerk, within three months from the time such right of action accrued a statement giving full name, and the time, place, and nature, circumstances and cause of the injury or damage complained of. No appeal bond shall be required of the city by any court in any case of appeal by said city.” On the part of the defendant in error, it is contended that the provision above quoted is not mandatory; that it is applicable to the subject of costs, only; and that the filing of the statement therein contemplated need not be alleged or proved in actions for damages against the city. In...

To continue reading

Request your trial
18 cases
  • Brown v. Salt Lake City
    • United States
    • Supreme Court of Utah
    • 9 Enero 1908
    ......Springfield, 131 Mass. 441.). . . The. requirement is reasonable and is mandatory, and a condition. precedent to recovery. ( Lincoln v. Grant, 55 N.W. 745; Dale v. Duluth, 76 N.W. 1029; Trost v. Casselton [Mich.], 79 N.W. 1071; Startling v. Bedford [Iowa], 62 N.W. 674; ......
  • Henry v. City of Lincoln
    • United States
    • Supreme Court of Nebraska
    • 14 Marzo 1913
    ...by defendant was the municipal corporation acting in a private capacity in a purely business enterprise. In City of Lincoln v. Grant, 38 Neb. 369, 56 N. W. 995, the action was for damages caused by a change of grade. In Nothdurft v. City of Lincoln, 75 Neb. 76, 105 N. W. 1084, the action wa......
  • Henry v. City of Lincoln
    • United States
    • Supreme Court of Nebraska
    • 14 Marzo 1913
    ...... by any other private corporation. It is subject to the same. liabilities and entitled to the same defenses; no more and no. less. We are not willing to indulge the presumption that the. legislature intended, by the statute quoted, to grant" any. special privileges to a municipal corporation, while acting. in such private business capacity, or relation, but rather. that it intended the limitation to apply to claims against a. municipality, arising out of the performance of its. governmental functions or corporate duties. . . \xC2"......
  • Williams v. City of Jacksonville
    • United States
    • United States State Supreme Court of Florida
    • 7 Marzo 1935
    ...... public corporations on the one hand and private corporations. and individuals on the other, and there being an express. grant of broad powers to the Legislature in section 8 of. article 8 of the Constitution with reference to municipal. corporations, that we cannot see our ... Muskegon, 111 Mich. 454, 69 N.W. 670; Kelly v. Faribault, 95 Minn. 293, 104 N.W. 231; Nance v. Falls City, 16 Neb. 85, 20 N.W. 109; Lincoln v. Grant, 38 Neb. 369, 56 N.W. 995; Jones v. Albany, 151 N.Y. 223, 45 N.E. 557; Winter v. Niagara. Falls, 190 N.Y. 198, 82 N.E. 1101, 123 Am. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT