Cnty. of Douglas v. Taylor

• Decision Date: 03 February 1897
• Citation: 50 Neb. 535,70 N.W. 27
• Parties: COUNTY OF DOUGLAS v. TAYLOR ET AL.
• Court: Nebraska Supreme Court

50 Neb. 535

70 N.W. 27

COUNTY OF DOUGLAS

v.TAYLOR ET AL.

Supreme Court of Nebraska.

Feb. 3, 1897.

Syllabus by the Court.

1. Taylor owned a tract of land lying within the limits of the city of Omaha, in Douglas county. On the north side of his land was a public thoroughfare. The south half of this thoroughfare, in front of Taylor's land, was in the limits of the city of Omaha. The north half of the thoroughfare, in front of Taylor's land was without the limits of the city of Omaha, but within Douglas county. The county made a cut and constructed a fill in the thoroughfare north of Taylor's land, the entire width of the street. Taylor sued the county for damages, alleging that, by the construction of the improvement in the street in front of his property, the latter had been depreciated in value; that, in constructing said improvement, the county had dug and carried away portions of his land lying outside the limits of said street; had torn down his fences, and cut down his trees, and used the same in the construction of said improvement; and had appropriated a portion of his land lying outside the limitsof said thoroughfare, by constructing thereon the base of said fill. Held: (1) Construing sections 1, 33, and 1a, c. 78, Comp. St., that it was the duty of the county to work and maintain the north half, and the duty of the city of Omaha to work and maintain the south half of said street in front of plaintiff's property, but that the county and city had concurrent jurisdiction or authority to construct the cut and fill in the street in front of Taylor's property; and that, therefore, the acts of the county in the premises were not ultra vires. (2) That it was immaterial what technical name might be given to Taylor's action, for, whether his petition stated a cause of action ex delicto or ex contractu, the averments thereof, if true, established the fact that his property had been taken and damaged for public use; and that, by virtue of section 21 of the bill of rights, he was entitled to compensation therefor. (3) That no legislative enactment was necessary to enable Taylor to maintain his action. (4) That the district court had original jurisdiction to try the claim of Taylor against the county; that it was not a claim required by section 37, art. 1, c. 18, Comp. St., to be filed with the county clerk of said Douglas county, and passed upon by its board of commissioners. (5) The word “claims,” in said section 37, has reference only to claims originating in contract, express or implied, between the claimant and the county.

2. Evidence examined, and held to sustain the finding of the district court.

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

Action by Joseph H. Taylor against Douglas county and others. From a judgment against the county, it brings error. Affirmed.

J. L. Kaley and A. C. Troup, for plaintiff in error.

C. A. Baldwin, G. W. Doane, and Robt. Patrick, for defendants in error.

RAGAN, C.

Joseph H. Taylor brought this suit to the district court of Douglas county against said county, the individuals composing its board of commissioners, and the city of Omaha, to recover damages which he alleged his real estate had sustained by reason of the grading of a street or highway in front thereof. At the close of the evidence, the district court directed a verdict returned in favor of the gentlemen composing the board of commissioners, and the city of Omaha, which was done, and a judgment entered dismissing them out of the action. The case proceeded to trial against Douglas county, and resulted in a verdict and judgment in favor of Taylor, and the county brings the same here for review on error.

1. The first argument is that the petition does not state facts sufficient to constitute a cause of action against Douglas county. The petition alleges, in substance, that in the year 1890, plaintiff was the owner of a small tract of land lying in the western part of the then corporate limits of the city of Omaha, in said Douglas county; that running east and west on the north side of plaintiff's land was a public highway; that prior to 1887 this highway on the north side of plaintiff's land was one of the public roads or highways of Douglas county; that at that time the part of said highway east of plaintiff's land was known as “Leavenworth Street,” in said city of Omaha; that in the year 1887 the western boundary of said city was so changed as to put plaintiff's property, and the south half of said highway or street in front thereof, within the limits of said city of Omaha, and leave the north half of said street in front of plaintiff's property outside the limits of said city of Omaha, but within the county of Douglas; that in the autumn of 1890 the gentlemen constituting the board of commissioners of said county, “while pretending to act in their official capacity, with a strong hand, unlawfully, wrongfully, forcibly, and without any authority of law, entered upon plaintiff's land with horses, mules, men, and machinery,” and made a cut and fill in said street in front of plaintiff's property; that said cut began on the eastern boundary of plaintiff's land, and extended west 250 feet, was constructed the full width of the street, and was from 8 to 12 feet in depth; that the fill began at the west end of the cut made, and extended to the western boundary of plaintiff's land, a distance of 600 feet; was constructed the width of the entire street, and from 12 to 20 feet in height; that the said cut and fill so constructed depreciated in value and damaged plaintiff's land; that, in the prosecution of said work, said workmen dug and carried away a portion of plaintiff's land lying outside the limits of said street, and used and appropriated said earth so dug and carried away towards the construction of said fill; that, in making said fill, said workmen so constructed it that several feet of the south line of the base thereof rested on the north end of plaintiff's land lying outside the limits of said street; that, in the prosecution of said work, said workmen entered upon plaintiff's land, tore down his fences, cut down his trees, and used and appropriated said trees and fences towards the construction of said cut and fill, to the plaintiff's damage.

(a) The first contention is that, since Taylor's land and the south half of the street or highway north thereof were in the limits of the city of Omaha, it, and it alone, had jurisdiction and authority to work and repair the south half of said street in front of plaintiff's property; that the county had no jurisdiction or authority to work or repair the south half of said street in front of plaintiff's property; and that the act of its commissioners in constructing the grade and cut in the south half of said street was ultra vires, was void; and that the county is not bound by their action. The property of Taylor and the south half of the street in front thereof were in the city of Omaha; and, because of that fact, the city had jurisdiction and control over the south half of said street in front of Taylor's property, and it was the city's duty to work, grade, and maintain, in proper repair and condition for travel, said part of said street. Comp. St. c. 78, § 33. The north half of said street in front of Taylor's property was outside the limits of the city of Omaha, but in Douglas county. The county then had jurisdiction and control over the north half of said street, and it was its duty to work and maintain, in proper condition for travel, said north half of said street. Section 1, c. 78, Comp. St. Such were the duties of the county and city, respectively, as to such street in front of plaintiff's property; but section 1a, c. 78, Comp. St., passed and approved March 30, 1889, provides that the county board of any county in which any city of the metropolitan class is situate is authorized and empowered to aid in the grading, paving, or otherwise improving of any street leading into said city, and within the corporate limits thereof, by providing for the payment of a certain portion of the costs of such labor. A city of the metropolitan class, namely, the city of Omaha, at the time this grading was done, was situate in Douglas county. The street in front of plaintiff's property led into said city; and the street, or at least a part of it, was within the corporate limits of said...