City of Omaha v. Flood

Decision Date08 December 1898
Citation57 Neb. 124,77 N.W. 379
PartiesCITY OF OMAHA v. FLOOD.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. The essential ingredient of a nuisance is its unlawful or wrongful character.

2. The unlawful obstruction of a public street is a nuisance, but that which is authorized by competent legal authority does not in law constitute a nuisance.

3. When the authorities of a municipal corporation, invested by the legislature with authority so to do, construct an improvement in a public street, such improvement is not a nuisance, though it damage adjacent property, and interfere with the owner's enjoyment thereof, and be negligently constructed.

4. Where property fronting on a public street is damaged by the method or manner adopted by the authorities of a municipal corporation in permanently grading such street, the corporation is liable to the owner of such property for such damages.

5. In such case, the owner's measure of damages is the depreciation in value of his property caused by the construction and permanent maintenance of the grade.

6. And, for the purpose of arriving at the amount of such depreciation, the fact that the grade, as constructed and maintained, obstructs, and will continue to obstruct, the owner's passage between his property and the street, decreases the rental value of his property, and interferes with his enjoyment and possession thereof, and every other fact and circumstance that would depreciate the market value of the property in the mind of a good-faith intending purchaser thereof, are proper elements for consideration.

7. In such case, the owner's cause of action accrues on the completion of the grade, and is barred in four years thereafter.

Error to district court, Douglas county; Blair, Judge.

Action by Andrew Flood against the city of Omaha. Judgment for plaintiff. Defendant brings error. Reversed.W. J. Connell, for plaintiff in error.

F. W. Fitch, for defendant in error.

RAGAN, C.

Sixth street is one of the public thoroughfares of the city of Omaha, and extends north and south. It is crossed at right angles by Pine street. These streets are each 100 feet in width. On the southeast corner of their intersection lies block 38 of Credit Foncier addition, and in the northwest corner of this block are lots 3 and 4 thereof, the property of Andrew Flood. These streets intersect on the crest of a hill or bluff. The authorities of the city of Omahaduly caused the two streets to be graded, and in so doing made a cut in each of said streets in front of Flood's property 65 feet deep. The city, however, in grading these streets, did not grade them to their full width of 100 feet, but graded only a width of 60 feet in each street, thus leaving an embankment on the north and west of Flood's property 20 feet wide. More than four years after the completion of this grade, Flood brought this suit to the district court of Douglas county against the city of Omaha, setting forth, in substance, the foregoing facts, and alleging that the strips of earth left by the city ungraded, between his property and the graded streets, interfered with his unobstructed passage between his lots and the graded streets; that such strips constituted a continuing nuisance; that prior to the grading his property had a rental value of $200 per year; that since the grading of the streets, and by reason of the manner in which they were graded, the rental value of the property had been decreased 50 per cent. Flood in his petition further alleged that, by reason of the city's grading the said streets in the manner it did, he himself had been unable to grade his lots or bring them to grade, or to use the streets adjacent to his property, to his damage in the sum of $7,000. The city in its answer admitted the grading of the streets as alleged by Flood, and, among other defenses, interposed the statute of limitations. Flood had a judgment, to review which the city has filed here a petition in error.

It stands admitted by the record that these streets, as laid out and platted, were each 100 feet in width; that the city caused them to be graded to the width of only 60 feet, thus leaving a strip of earth, or an embankment, 20 feet wide on each side of each street, between the graded portion thereof and the lot line of the abutting owner; that the city authorities of said city were by law invested with the power to grade these streets in the manner they did; that the work of grading was not negligently done, unless the partial grading of the street was negligence; and that Flood has sustained no injury or damage as the result of this grading, except such as resulted from its being a partial, instead of a complete, grading of the streets. Without following the specific assignments of error, we proceed at once to the merits of the controversy.

1. The district court instructed the jury as follows: “A city has no right to obstruct its streets, by itself or agents, so as to deprive the property holders of free access to and from their lots abutting on the same. If it permits the use of a street to be in any manner obstructed, it must see that the approach is so constructed as not to produce injury to adjacent property holders. If you believe from the evidence that damage to the plaintiff has been occasioned by the alleged obstruction complained of, and that the same has operated as an injury to the use and occupation of plaintiff's premises, and has caused a loss of rents, or his comfortable enjoyment thereof has been lessened, then you are instructed to find from the evidence to what extent an injury has been occasioned thereby. * * * The embankments complained of in this case, if they have worked any hurt, injury, damage, or inconvenience to the plaintiff, constitute a continuing nuisance, and the statute of limitations is not a bar to plaintiff's right to recover in this suit such damages as the jury shall find from the evidence he has sustained within four years next previous to the date when this suit was brought.” The court refused to instruct the jury as follows: “You are instructed that the city was under no obligation to grade the property lying between plaintiff's lots and the streets of the city of Omaha, * * * and no such duty is enjoined upon the city by the charter of metropolitan cities, or by law; and that said earth standing upon said property lying between the street of the city of Omaha and the premises of plaintiff was not in law, as applicable to the evidence in this case, a nuisance.” “As the undisputed proof in this case shows that the grading in controversy was done more than four years prior to the commencement of this action, all claims for damages by reason of such grading are fully and completely barred by the statute of limitations at the time of the commencement of this action.” “You are instructed that, unless the banks of earth * * * adjoining Sixth * * * and * * * Pine streets were nuisances, no recovery whatever can be had in this action. As to whether these strips, or either of them, was a nuisance, it was proper for you to consider whether the ground comprising these strips was left in its original condition; and if it was, and by no act of the city it was changed from its original condition, the said banks would not be a nuisance, such as would give the plaintiff a right of recovery by reason of allowing them to remain in their original condition.”

We have quoted these instructions for the purpose of showing the theory upon which this case was tried in the court below. It will be observed that the theory of Flood was--and the district court adopted it--that these ungraded portions of the street obstructed Flood's passage between his property and the graded portion of the streets, disturbed him in the enjoyment of his property, depreciated its rental value, and that, therefore, the ungraded portions of the street constituted a continuing nuisance. We think this theory was wrong. The city authorities were clothed with the amplest jurisdiction as to its streets; were not only invested by law with the control and management of its streets, but were expressly authorized to open, to extend, to...

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    • United States
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    • 8 Enero 1903
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    • United States
    • United States State Supreme Court of North Dakota
    • 28 Febrero 1917
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