Gillespie v. City of South Omaha

• Court: Nebraska Supreme Court
• Writing for the Court: CALKINS, C.
• Citation: Gillespie v. City of South Omaha, 79 Neb. 441, 112 N.W. 582 (Neb. 1907)
• Decision Date: 22 June 1907
• Docket Number: 14,886
• Parties: THOMAS GILLESPIE, APPELLEE, v. CITY OF SOUTH OMAHA, APPELLANT

112 N.W. 582

79 Neb. 441

THOMAS GILLESPIE, APPELLEE, v. CITY OF SOUTH OMAHA, APPELLANT

No. 14,886

Supreme Court of Nebraska

June 22, 1907

APPEAL fro the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

Lambert & Winters, for appellant.

Smyth & Smith, contra.

CALKINS C. JACKSON and AMES, CC., concur.

OPINION

CALKINS, C.

The plaintiff owned property abutting the north side of L street between Thirty-Eighth and Thirty-Ninth streets in the city of South Omaha. L street was much used, and the whole tide of travel passed by the property of the plaintiff. He owned a business building at the corner of Thirty-Eighth and L streets, which was used by him for a hotel and saloon. The travel east and west upon L street made his lots desirable for business purposes. This was the condition of his property when the city closed L street from Thirty-Eighth street west to Thirty-Ninth street, and vacated the south half of L street between Thirty-Eighth and Thirty-Ninth streets. On the half thus vacated the city constructed a viaduct, which started at Thirty-Ninth street and ran east in front of the plaintiff's property across the railroad tracks to a point where L street intersects Thirty-Sixth street. Thirty-Ninth street is considerably higher than Thirty-Eighth street, and the viaduct passes in front of the plaintiff's property at a point about 20 feet above the surface of the street. As a result of the closing of the streets and the building of the viaduct, the travel which before passed in front of the plaintiff's building now crosses on the viaduct 20 feet above. To reach the plaintiff's property, travel from the east must go west over the viaduct to Thirty-Ninth street, and then retrace its course along the part of the street left open on the north side, so that, while access to the plaintiff's property from the public street is not prevented, its convenience is greatly diminished, and the amount of casual travel passing his place of business much reduced. This was an appeal to the district court from refusal of the city council to allow plaintiff's claim for damages. The jury found for the plaintiff in the sum of $ 3,000, and from a judgment rendered upon this verdict the defendant appeals.

1. In the first instruction the jury were told that the only question for its consideration was the amount of damages suffered by plaintiff on account of the depreciation in the value of his property caused by the vacation of L street and the erection of the viaduct mentioned in the plaintiff's petition; that its verdict must be for the plaintiff in some amount; but that, in considering damages sustained, it must be damages to the realty, and not to any business conducted by the plaintiff. Exception is taken to so much of this instruction as tells the jury it must find for the plaintiff in some amount, the contention being that, upon the theory of law contended for by the defendant, the jury might have found for the defendant. If the plaintiff was entitled to recover the depreciation in value of his property caused by the closing of the street and the erection of the viaduct, this instruction was right; for, while this depreciation was not estimated at so great an amount by the defendant's witnesses as by those called for the plaintiff, its existence in some amount was conceded by all. The objection to this instruction involves the question whether the damages proved were such damages as the plaintiff was entitled to recover. This question arises upon the defendant's objection to the other instructions, and is we think, the only question in the case. The position of the defendant is that there were in this case two kinds of damages, general and special, the former being such as are shared by the plaintiff generally with the public at large, and the latter such as are peculiar to the plaintiff's property; and it is sought to limit the latter by further restricting the same to such damages as he could have recovered at common law if the improvement had not been authorized by statute. Since at common law there must be a physical interference with the enjoyment of the possession of the property to sustain an action for damages thereto, it would follow from the adoption of this theory that there could only be a recovery in cases where the property is...