City of Lincoln v. Grant
| Decision Date | 21 November 1893 |
| Docket Number | 5379 |
| Parties | CITY OF LINCOLN v. PATRICK J. GRANT |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before TIBBETS, J.
REVERSED AND REMANDED.
N. C Abbott, City Attorney, and Abbott, Selleck & Lane, for plaintiff in error:
It was incumbent on defendant in error to prove that he had filed his claim in the office of the city clerk. (Comp. Stats. Neb sec. 36, ch. 13a.)
The statute is valid. Such provisions are uniformly enforced in other states. (Nichols v. Minneapolis, 16 N.W. [Minn.], 410; Clark v. City of Austin, 38 N.W. [Minn.], 615; Sheel v. City of Appleton, 5 N.W [Wis.], 27; Vogel v. City of Antigo, 51 N.W. [Wis.], 1008; Hiner v. City of Fond du Lac, 36 N.W. [Wis.], 632; Crittenden v. City of Mt. Clemens, 49 N.W. [Mich.], 144; Mead v. City of Lansing, 56 Mich. 601; City of Detroit v. Michigan Paving Co., 38 Mich. 358; Yolo County v. City of Sacramento, 36 Cal. 193; City of Atchison v. King, 9 Kan. 550; Reinig v. City of Buffalo, 6 N.E. [N. Y.], 792; Jones v. City of Minneapolis, 31 Minn. 230; Benware v. Town of Pine Valley, 53 Wis. 527; Maddox v. Randolph County, 65 Ga. 216; Marshall County v. Jackson County, 36 Ala. 613; May v. City of Boston, 23 N.E. [Mass.], 220; Greenleaf v. Norridgwock, 19 A. [Me.], 91; Low v. Windham, 75 Me. 113.)
Richard Cunningham, contra, cited: Foxworthy v. City of Hastings, 23 Neb. 772.
The opinion contains a statement of the case.
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 so 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 damage 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 the time, place, and circumstance of the damage complained of, etc., is fatal, and a complete defense to his action. Section 36 of the city's charter, as amended in 1889 (sec. 36, ch. 13a, Comp. Stats., 1889), concludes as follows:
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 support of that contention he cites Foxworthy v. Hastings, 23 Neb. 772, 37 N.W. 657, in which it is said: "While it is proper to present the names of such witnesses to the city authorities in order that the validity of the claim may be investigated, yet it is believed that the failure to do so will not defeat a recovery, although it may affect the question of costs." It is true the act involved in that case contains substantially the same provision as the one now under consideration, but the question presented and decided was the validity of the provision requiring actions against the city to be brought within six months after the sustaining of the injury or damage complained of. That the observations with reference to the question here presented are mere dicta, and were intended as such, is clear, since it is stated in the opinion that the provision for the filing of the statement referred to was not necessary to a determination of that controversy. Regarding the question as an open one, we have examined it in the light of authority; and our conclusion is that the filing of the statement contemplated by the charter of the...
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