City of Omaha v. Clarke

• Decision Date: 22 October 1902
• Parties: CITY OF OMAHA v. CLARKE ET AL.
• Court: Nebraska Supreme Court

66 Neb. 33

92 N.W. 146

CITY OF OMAHA

v.CLARKE ET AL.

Supreme Court of Nebraska.

Oct. 22, 1902.

Syllabus by the Court.

1. It is not necessary to sustain the entering of judgment against the city, as incident to a decree in an equitable action to correct an award, made and confirmed by the city authorities, of damages for the appropriation of land for street purposes, that a claim for the amount should have been filed with the city clerk and rejected by the council.

2. To warrant a finding and decree that an award made by the appraisers of damages caused by taking property for street purposes should have been in favor of plaintiffs' assignor, instead of another who was named in it, proof of the assignor's ownership of the premises must be produced.

3. While the city is in possession of and using property for street purposes, it will not be permitted to allege its own irregularities in procedure as a reason for not paying damages awarded the owner for the taking of his property.

4. An action on an award of damages for the taking of land for street purposes is not barred before five years from the making and confirmation of the award.

Commissioners' opinion. Department No. 1. Error to district court, Douglas county; Fawcett, Judge.

Action by Artemus M. Clarke and others against the city of Omaha and William J. Connell. Judgment for plaintiffs, and the city brings error. Reversed.James H. Adams, for plaintiff in error.

Wm. D. Beckett, J. W. Woodrough, and W. J. Connell, for defendants in error.

HASTINGS, C.

This is a petition in error from a decree correcting an award of damages for the taking of real estate for use as a street by the city of Omaha, and directing payment to the plaintiffs. The ground on which the decree was sought to be corrected was that it had been made by accident and mistake to William J. Connell, when it should have been made to the plaintiffs' assignor, W. E. Clarke, because the latter was the owner of the land in question and Connell had no interest. Connell made default, and on the hearing decree was entered changing the award in favor of plaintiffs' assignor and awarding to them judgment for the amount. The city brings error, alleging that the decree is not sustained by sufficient evidence, and that there was error in overruling the city's demurrer to plaintiffs' petition and in the reception of certain documentary evidence offered by them.

The first ground on which the claim that the decree is unsupported by the evidence is sought to be maintained is that it nowhere appears in the record that the claim was filed with the city clerk and submitted to the council as is required by section 33 of the city charter. Comp. St. c. 12a. It is conceded by the plaintiffs that this is the case; but it is contended that in case of an award made at the city's own instance and approved by its authorities, and after its taking possession of the ground for which compensation was awarded, there is no requirement of any further submission of a claim under such award. It might also have been suggested that, the primary purpose in this action being to correct an award, the rendering judgment for its payment was simply giving the full equitable relief which the court should administer in a case where its jurisdiction has attached. The first ground seems to be sustainable, and is the one mainly urged. It can hardly have been necessary, before the institution of these proceedings, to present anv claim for the allowance of this award, which the city had then procured and which its council had approved. The reasoning of this court in Perkins Co. v. Keith Co., 58 Neb. 323, 78 N. W. 630, seems to cover this case. The second ground--the authority of the court to grant complete relief in a case where its jurisdiction has once attached--seems to be nearly as good. This claim of error must therefore be overruled.

It is urged that the evidence does not show that the lands in question belonged to Clarke. Two replies are made to this: First, this was an issue solely between Connell and Clarke, and Connell, not appearing and permitting a decree against him by default, has lost any rights which he might have had in the premises, and the city can claim nothing on account of nonownership by Connell, and it is of no importance to the city to whom the payment is made for this land, which is found to have been taken; and, second, it is replied that there is evidence in the record tending to show ownership in Clarke. The allegations of the petition are: That the city council, on or about September 9, 1893, declared by ordinance that the appropriation of certain property for the purpose of opening South Twenty-Fourth street from the north line of lot 59 in Redick's Second addition to Omaha was necessary, and among other property the following, of which Wm. E. Clarke was owner: “Commencing at the southeast corner of lot 59, Redick's Second addition, running thence north along the east line of said lot, 66 feet; thence west 44 feet, more or less, to the west line of South Twenty-Fourth street as extended by Ordinance No. 3691, passed by the city council of Omaha September 9, 1893, and approved September 12, 1893; and running thence along said line 66 feet, more or less, to the south line of said lot 59; thence east 40 feet, more or less, to the place of beginning, in the county of Douglas, state of Nebraska.” That the ordinance was approved by the mayor and appraisers were appointed. That by schedule B of their report the above described property was taken and damages placed at $1,000. That it was reported by the appraisers to be the property of Wm. J. Connell, but was in fact that of Wm. E. Clarke. That the assignment of damages was reported to the council, and the council, being ignorant of Clarke's ownership, confirmed the report and awarded to...