Greenwood v. City of Lincoln, 33175

• Decision Date: 31 October 1952
• Docket Number: No. 33175,33175
• Citation: 156 Neb. 142,55 N.W.2d 343
• Parties: , 34 A.L.R.2d 1203 GREENWOOD et al. v. CITY OF LINCOLN.
• Court: Nebraska Supreme Court

Page 343

55 N.W.2d 343

156 Neb. 142, 34 A.L.R.2d 1203

GREENWOOD et al. v. CITY OF LINCOLN.

No. 33175.

Supreme Court of Nebraska.

Oct. 31, 1952.

Syllabus by the Court.

1. A municipal corporation while acting by virtue of a grant of sovereign power is not liable, in the absence of a statute, for the negligent or wrongful acts of its officials, servants, or agents.

2. It is recognized by the law that the right of a municipal corporation to require the destruction of weeds and worthless vegetation therein is a governmental function for the benefit, comfort, and protection of the health of the public.

3. A city is not liable for acts done in the wrongful performance of purely governmental functions, however improperly the authority is exercised, neither can it ratify the wrongful acts of its servants or agents done in the performance of its governmental functions so as thereby to make itself liable for their acts.

Cline, Williams, Wright & Johnson and C. Russell Mattson, Lincoln, for appellant.

John McArthur, Lincoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Appellees seek to recover damages that they claim were caused them by appellant intentionally and wrongfully destroying a large number of raspberry bushes then growing on the land of appellees located in the city of Lincoln.

The trial of the case produced a verdict and judgment for appellees. The motion of appellant to set aside the verdict returned and the judgment rendered against it and to enter a judgment for it, as the appellant had requested in a motion at the close of the evidence, or in the alternative for a new trial of the case was denied. The case is here by appeal.

The gist of the claim of appellees as made by their petition is that they were the owners of an acreage of land in the city of Lincoln on which a large number of raspberry bushes of producing age and condition were then growing; and that appellant, a city of the primary class, intentionally and wrongfully without the knowledge and in the absence of appellees destroyed the raspberry bushes and thereby caused appellees substantial damage. Appellant denied the allegations of the petition except it admitted that appellees were the owners of the real estate; that Lincoln was a city of the primary class; and that the claim of appellees filed with the city was denied. Appellant further asserted that the real estate was overgrown with various tall weeds; that complaint of the existence of the weeds was made to it; that it gave notice to appellees to cut and destroy the weeds in accordance with an ordinance of the city; that appellees cut the weeds on a small strip of the premises but otherwise disregarded the notice and demand of the city; that it thereafter, by its servants and agents, cut the weeds in the time and manner provided by the ordinance; and that the acts of the city with reference to the property of appellees were in performance of a governmental function of the city of Lincoln for which activity there was no liability of the city to respond in damages for any injury or loss thereby occasioned appellees.

The record discloses that at the time important to this case the charter of appellant authorized it to provide for and to require the removal and destruction by the owners of weeds and worthless vegetation growing on any lot or land or street or alley abutting thereon within the city. If the owners failed or refused after five days' notice by personal service to do so, the city by its proper representative was required to destroy the weeds and vegetation and to assess the cost thereof against the real estate. An ordinance passed and effective at that time, by virtue of and in harmony with the authority of the charter provision, required every owner of real estate in the city to cut and clear it of weeds and worthless vegetation on or before May 15, July 15, August 15, and November 15 of each year. If the owner failed to do so on five days' notice given by the city, it was required to cut the weeds and vegetation and assess the cost thereof against the real estate.

Complaint was made to appellant of weeds growing on the real estate of appellees. The weed inspector of the city thereafter on September 27, 1950, examined the premises and found 'Tall weeds, sunflowers, and the likes' growing thereon--weeds that needed to be cut. He saw no indication of any crop or raspberry bushes growing in the weeds. He prepared and sent to appellees on September 29, 1950, a notice and demand that they cut and remove the weeds and worthless vegetation then growing on their premises within five days or the city would do so and assess the cost against the real estate. The notice and demand was received by appellees on the day it was dated. The growth of weeds and useless vegetation was removed by the owners from a small part of the premises but otherwise the notice and demand was entirely disregarded, either because of indifference or a determination to resist the request of the city, and because thereof on October 12, 1950, a servant of the city mowed the premises with a power mower belonging to the city. He did this without difficulty or unusual development. It was this operation that appellees claimed destroyed a large number of their growing and producing raspberry bushes.

Appellees planted raspberry bushes in the spring of 1947. The let the natural vegetation consisting of grass and the natural weeds grow on the premises where the raspberry bushes were planted. There was a swale through this area. It overflowed in times of considerable precipitation, and the weeds and vegetation had a tendency to keep the raspberry bushes from washing out. There was a considerable natural growth on the premises consisting of wild grass, sunflowers, rag weed, and all kinds of wild vegetation that is included in natural growth. This area was not cultivated and nothing was done to interfere with the growth of the wild vegetation thereon from the time the raspberry plants were planted in 1947, until and during the year 1950. Some of the wild vegetation was as much as five feet tall.

A determination of the capacity in which appellant was acting at the time of the acts complained of in this case is important and may be decisive. A municipal corporation occupies a dual relation to its citizens and the public. In the performance of its governmental or public duties it is the representative of the state. It has the governmental powers conferred and the burdens imposed upon it by its charter, and is entitled to the privileges, immunities, and exemptions given it by law. The governmental functions of a city are for the benefit of the public and not the corporate entity. A municipal corporation has and is obligated also to perform corporate duties, those expressly imposed upon it by its charter, and also those that devolve upon it by reason of the governmental powers and privileges it has, such as the duty to maintain its streets, alleys, and sidewalks in a reasonably safe condition for their intended use. Its corporate functions are for the benefit of the city as well as advantageous to the public. A municipal corporation is sometimes authorized to own and conduct a business or commercial enterprise and when it engages therein it is said to be acting in its private or proprietary capacity. It has no duty to conduct such an undertaking and when it does it is entirely voluntary on its part and it thereby enters into a third relation distinct from the dual relations above noted. While occupying this third relation it is engaged in conducting a business and is subject to the law and procedure applicable to a private corporation or person conducting a like business. It has in that regard no governmental functions or corporate duties and has no more privileges or exemptions than a private corporation. Henry v. City of Lincoln, 93 Neb. 331, 140 N.W. 664, 50 L.R.A.,N.S., 174; Platte Valley Public Power & Irr. Dist. v. Lincoln County, 144 Neb. 584, 14 N.W.2d 202, 155 A.L.R. 412.

Appellant argues that the doctrine of governmental immunity interposes to...