City of Omaha v. Howell Lumber Co.

• Decision Date: 28 October 1890
• Citation: 46 N.W. 919,30 Neb. 633
• Parties: CITY OF OMAHA v. HOWELL LUMBER CO.
• Court: Nebraska Supreme Court

30 Neb. 633

46 N.W. 919

CITY OF OMAHA

v.HOWELL LUMBER CO.

Supreme Court of Nebraska.

Oct. 28, 1890.

Syllabus by the Court.

Where land is condemned for public use, as for opening a street, the owner is entitled to the fair market value of the land actually taken, and special benefits to the residue of the tract cannot be set off against such value, but may be against incidental damages to the residue of the tract.

Error to district court, Douglas county; DOANE, Judge.A. J. Poppleton, for plaintiff in error.

Congdon & Hunt, for defendant in error.

MAXWELL, J.

The city of Omaha extended Leavenworth street from block 187 to the Missouri river, and, in doing so, condemned a portion of the defendant in error's land. Appraisers were duly appointed who estimated the damages and made an award. An appeal was taken to the district court, where the jury returned a verdict as follows: “We, the jury, duly impaneled and sworn to try the issues in the above-entitled case, do find that the market value of the strip in controversy, at the time of the condemnation proceedings, was $8,625. We do further find that the special benefits to the remaining land of the Howell Lumber Company through the opening of Leavenworth street amounted to the sum of $5,000.” A motion for a new trial having been overruled, judgment was entered on the verdict excluding the special benefits.

The sole question presented is, can special benefits be set off against the value of the land actually taken? This question was carefully considered in Wagner v. Gage Co., 3 Neb. 237. In that case, about 6 3/4 acres of plaintiff's land was taken for a public road. The case was tried before Judge GANTT, who, in effect, instructed the jury that they might set off special benefits against the value of the land actually taken. The jury thereupon returned a verdict finding that there were no damages to the land-owner. This court, after a very careful consideration of the decisions and the rule which should be adopted in such case, held that the value of the land taken, must, in all cases, be paid in money, but that special benefits may be set off against incidental damages to the residue of the tract. That case was followed in Railroad Co. v. Whalen, 11 Neb. 585, 10 N. W. Rep. 491. In the latter case, Judge LAKE, who wrote the opinion and prepared the syllabus, says: “Where land is condemned for railroad purposes, the owner is entitled to have, as one item of damage, in all cases, the fair...