City of Plattsmouth v. Boeck

• Decision Date: 30 June 1891
• Citation: 49 N.W. 167,32 Neb. 297
• Parties: CITY OF PLATTSMOUTH v. BOECK.
• Court: Nebraska Supreme Court

32 Neb. 297

49 N.W. 167

CITY OF PLATTSMOUTH

v.BOECK.¹

Supreme Court of Nebraska.

June 30, 1891.

Syllabus by the Court.

1. Affidavits used as evidence in the district court will not be considered by this court, unless they are made a part of the record by being embodied in a bill of exceptions.

2. When private property is damaged by the location and construction of a public improvement near it, and the property is not specially benefited by the improvement, the measure of the property owner's damages is the difference betweenthe value of the property immediately before the location and construction of the improvement and its value immediately afterwards.

3. A city is liable to a lot-owner for the diminution in value of his property caused by the location and construction of a sewer built by the city near his lot, on which a brick building had been erected before the sewer grade was established, although the work was performed in a careful and skillful manner.

4. When an instruction is given by which it is sought to cover the entire issues made by the pleadings and evidence, all the essential elements involved in the case should be introduced in the instructions.

Error to district court, Cass county; CHAPMAN, Judge.

C. S. Polk, for plaintiff in error.

Beeson & Root, for defendant in error.

NORVAL, J.

Henry Boeck, the plaintiff below, is the owner of two brick buildings, situated on block 35, in the city of Plattsmouth. One is a two-story and basement, and the other a one-story and basement. The buildings are separated by an alley running through the block, and abut upon the alley. In 1880 the defendant city excavated the alley to a depth of 16 feet below the natural surface of the ground, and within a foot of the lines of plaintiff's lots and buildings, and constructed a sewer of masonry. By reason of the excavation for and construction of the sewer so near to and below the bottom of the foundation of plaintiff's walls, the buildings settled, cracking the walls and damaging the buildings. This action was brought against the city to recover the damages thus sustained. A trial was had to a jury, who returned a verdict to the plaintiff in the sum of $1,500. The defendant's motion for a new trial was overruled, and judgment was entered upon the verdict. The first error assigned in brief of counsel for the plaintiff in error relates to the alleged misconduct of N. B. Burgess, one of the jurors who tried the cause. There appears in the transcript the affidavit of Deputy-Sheriff David Hiller, to the effect that the juror Burgess viewed and inspected the walls of the injured buildings in controversy, after the argument of the cause by the attorneys, but before the jury had retired to consider their verdict. There are also other affidavits within the transcript, bearing upon the same question, but the point raised by counsel cannot be considered by this court, for the reason that the affidavits were not embodied in the bill of exceptions. It does not appear that they were ever read in the court below, or that the attention of the trial court was called to them. To be available as evidence in this court, the affidavits should have been made a part of the record by being embodied in the bill of exceptions. Ray v. Mason, 6 Neb. 101; Credit Foncier of America v. Rogers, 8 Neb. 36; Aultman v. Howe, 10 Neb. 10, 4 N. W. Rep. 357;Oliver v. Sheeley, 11 Neb. 521, 9 N. W. Rep. 689;Walker v. Lutz, 14 Neb. 274, 15 N. W. Rep. 352;Sides v. Brendlinger, 14 Neb. 491, 17 N. W. Rep. 113;Kyle v. Chase, 14 Neb. 528, 16 N. W. Rep. 821;Tessier v. Crowley, 16 Neb. 369, 20 N. W. Rep. 264;Wagon Co. v. Benedict, 25 Neb. 372, 41 N. W. Rep. 254;Vallandingham v. Scott, (Neb.) 46 N. W. Rep. 421.

The court was asked by the plaintiff in error to give the following instructions: “(4) You are instructed that, if you find the plaintiff is entitled to recover, the measure of damages would be the cost of repairing the injuries which you find from the evidence have been sustained, and the actual damages suffered by inconvenience and determent to plaintiff's business, if any such has been shown.” The request was refused, and the court instructed the jury, in effect, that the rule of damages in the case is the difference between the market value of the property immediately before the construction of the sewer and its value immediately after the sewer was built, provided such difference was...