Hammond v. City of Harvard

Decision Date31 March 1891
Citation31 Neb. 635,48 N.W. 462
PartiesHAMMOND v. CITY OF HARVARD.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

A city is liable, under the constitution of this state, to a lot-owner for such damages as he may sustain by filling in the street in front of his lot above the level of the same, when the buildings were erected on the lot before any grade was established. Harmon v. City of Omaha, 17 Neb. 548, 23 N. W. Rep. 503.

Error to district court, Clay county; MORRIS, Judge.L. P. Crouch, for plaintiff in error.

Leslie G. Hurd, for defendant in error.

COBB, C. J.

The plaintiff alleges in his petition: (1) The incorporation of the defendant; plaintiff's ownership and possession of lot No. 355 in defendant city; the erection thereon by him, in 1879, of a brick structure 80 feet long by 22 wide; the arrangement of the interior thereof at great expense for the special business of a retail dry goods and clothing house; its exclusive use for that purpose for a number of years consecutively prior and up to the date of this action; and a monthly rental of the same for that time of $30. (2) The establishment of a grade on Clay avenue in the defendant city; the abutting thereon of said premises; that the grade line is 16 inches above the doorstep of the entrance and floor of the building; the replacement by defendant, on or about the 14th day of March, 1888, of the old walk in front of the building with a new one 14 inches above the door-step of the entrance and the floor of the building; the consequent step of 14 inches from the walk in front down into the building. (3) That he is damaged by a lessened value of the property; the depreciated rental value of the same; from excessive dampness to the building from the wash of the street; and the loss of the investment in the interior arrangement of the building for a dry goods and clothing business. (4) That at the time said building was erected there was no established grade on said street. (5) That prior to the date of this action he presented to the council of the defendant city his claim for damages as aforesaid for the sum of $1,600, which was utterly rejected by them, and payment refused. (6) That plaintiff is damaged by the act of the defendant corporation in the sum of $1,600. The defendant admits its corporation; the establishment of the grade; the ownership and possession of the premises by plaintiff; the improvement of the street by defendant; but denies the damages; alleges a faulty construction of the building; the necessity of the grade for drainage purposes, and increased facilities of public travel; and that it is a benefit to the property, and not a damage. There was a trial to a jury, with a verdict “on the issues joined herein for the defendant.”

The plaintiff's motion for a new trial being overruled, the case is brought to this court on the following errors: (1) The court erred in sustaining defendant's objections to the question: “The way it has been for years?” (2) In sustaining defendant's objection to the question: “What has the building been used for?” (3) In sustaining the defendant's objection to the question: “State whether the party to whom you rented it for thirty-five dollars took it or not.” (4) In overruling plaintiff's objection to the question: “Have you owned this property ever since it was constructed?” (5) In sustaining defendant's objection to the question: “What rent did you pay for that building?” (6) In sustaining defendant's objection to the question: “How came you to leave that building?” (7) In sustaining defendant's objection to the question: “What was the value of the Hammond property--the fair market value--immediately prior to the establishment of that grade?” (8) In sustaining defendant's objection to the question: “You stated on cross-examination that the property was unsalable. Why was it unsalable?” (9) In overruling the plaintiff's objection to the question: “What difference is noticeable by the improvement made according to the grade?” (10) In overruling the plaintiff's objection to the question: “Is not the grade, as established, of the street and walk necessary to make a good wagon-way through the street as now constructed?” (11) In overruling the plaintiff's objection to the question: “If the building was built twelve and one-fourth inches higher upon its foundation, in the first place, it would have been benefited, would it not, by the grade?” (12) In overruling the plaintiff's objection to the question: “Was there any benefits accruing to this building, in company with the other lots upon this street, near it, resulting from the establishment of the grade?” (13) In sustaining defendant's objection to the question: “State what is the condition of the building that you occupy with reference to the improved condition of the street as established by the grade December 7, 1887.” (14) In sustaining defendant's objection to the question: “What effect does that have upon the room as a business room?” (15) In sustaining defendant's objection to the question: “How much does it lack?” (16) In sustaining defendant's objection to the question: “What further, if any?” (17) In overruling plaintiff's objection to the question: “If the building was constructed so that the floor was even with the grade of the sidewalk as placed under the improvement, would the grade, as established, be a benefit or an injury to it?” (18) In sustaining defendant's objection to the question: “State whether the improved condition of that street in front of the Hammond building in consequence of the establishment of the grade is a damage to the building that the owner sustains over and above that sustained by the other abutting owners.” (19) In overruling the plaintiff's objection to the question: “Suppose the building was twelve and one-fourth inches higher, top, bottom, and all,--the building, as it now is, was raised,--would the improvement made under the grade be a benefit or an injury?” (20) In sustaining defendant's objection to the question: “Would you consider it a benefit or a damage to this building that the rent should be lessened in consequence of the improvement of the street?” (21) In overruling the plaintiff's objection to the question: “Do you know the height of the old building above the level of the ground or prairie?” (22) In overruling the plaintiff's objection to the question: “Is the grade as established unreasonable, or an extravagant grade for the level of the street as it stands?” (23) In overruling the plaintiff's objection to the question: “Is the grade of the road, or of the walk, conforming thereto, anything more than was necessary to secure drainage and dry road-way, in your judgment?” (24) In sustaining defendant's objection to the question: “Suppose Mr. Hammond could not occupy the bank wall any greater height than he at present occupies it, how then?” (25) In sustaining defendant's objection to the question: “State whether, in your opinion, it adds to or detracts from the building as a business house.” (26) In sustaining defendant's objection to the question: “About what per cent. of loss have you sustained in that room in consequence of excessive dampness?” (27) In sustaining defendant's objection to the question: “What has been the amount of your losses?” (28) In refusing to give paragraphs Nos. 1, 2, 3, 4, 5, 6, and 8 of the instructions asked by plaintiff. (29) In giving paragraphs Nos. 4, 5, 6, and 7 of instructions of the court's own motion. (30) In overruling the plaintiff's motion for a new trial. (31) That the verdict is not sustained by sufficient evidence. (32) That it is contrary to law and the evidence, and the verdict should have been for the plaintiff.

The facts upon which the first error is based are that the plaintiff, being on the stand as a witness in his own behalf, was questioned as to the size, the material, and the manner of construction of the building upon the lot claimed to have been damaged by the established grade of the street in the town of Harvard. After describing the building, his counsel put the question: “How was the building arranged as to the inside? State about that. Answer. ...

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7 cases
  • McGavock v. City of Omaha
    • United States
    • Nebraska Supreme Court
    • 4 Abril 1894
    ... ... loss." To the same effect are: Harmon v. City of ... Omaha , 17 Neb. 548, 23 N.W. 503; Hammond v. City of ... Harvard , 31 Neb. 635, 48 N.W. 462; McElroy v. City ... of Kansas City , 21 F. 257; Schaller v. City of ... Omaha , 23 Neb. 325, ... ...
  • Brown v. City of Seattle
    • United States
    • Washington Supreme Court
    • 11 Octubre 1892
    ... ... 181, 7 So. Rep. 433; McElroy v Kansas City, ... 21 F. Rep. 257; Harmon v. City of Omaha, 17 Neb ... 548, 23 N.W. 503; Hammond v. City of Harvard, (Neb.) ... 48 N.W. 462 ... Question ... was made in all these cases, as it has been made in this one, ... ...
  • McGavock v. City of Omaha
    • United States
    • Nebraska Supreme Court
    • 4 Abril 1894
    ...owner is entitled to be compensated for his loss.” To the same effect are Harmon v. Omaha, 17 Neb. 548, 23 N. W. 503;Hammond v. City of Harvard, 31 Neb. 645, 48 N. W. 462;McElroy v. Kansas City, 21 Fed. 257;Schaller v. Omaha, 23 Neb. 332, 36 N. W. 533. We take it from the above holdings and......
  • Fayetteville v. Stone
    • United States
    • Arkansas Supreme Court
    • 17 Junio 1912
    ...by ordinance, without compensation for actual damages. 35 L. R. A. 852; 141 Ill. 351; 120 Mo. 110; 23 L. R. A. 658; 96 Pa. 331; 31 Neb. 635. WOOD, J., (after stating the facts). When the natural surface has been used as the grade line for the streets of a city, and abutting property owners ......
  • Request a trial to view additional results

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