Harman v. City of Omaha

• Decision Date: 12 May 1885
• Parties: CORDELIA W. HARMON, PLAINTIFF IN ERROR, v. CITY OF OMAHA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

23 N.W. 503

17 Neb. 548

CORDELIA W. HARMON, PLAINTIFF IN ERROR, v. CITY OF OMAHA, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 12, 1885

ERROR to the district court for Douglas county. Tried below before WAKELEY, J.

REVERSED AND REMANDED.

G. W Ambrose, for plaintiff in error.

W. J Connell, for defendant in error.

OPINION

MAXWELL, J.

The plaintiff alleges in her petition that she is the owner of the south 107 feet of lot 5 in block 248, in the city of Omaha, which is situate on the north side of Pierce street and between Eighth and Ninth streets, in said city; that she has "two dwelling-houses of five rooms each, and other usual and ordinary improvements, outhouses and the like," on said lot, all of the value of $ 1,200; that said houses were erected before the grade of Pierce street was established; that in the year 1878 the defendant established the grade of Pierce street, and in 1883 sought to work said street to the grade, and in doing so "filled in the earth in front of said houses and lot five feet, and compelled the plaintiff to erect a plank barricade in front of said premises in order to keep the earth away from said houses, at a cost of $ 100;" that in order to render said residences habitable the plaintiff will be compelled to fill said lot to the level of the street, and has sustained other damages thereby, in all to the amount of $ 1,600; that at no time either before or subsequent to said grading has she been allowed or tendered any compensation for said injury, etc. A demurrer to the petition was sustained in the court below and the action dismissed.

The question presented is the right of a lot owner, who has erected buildings thereon before the grade was established to recover damages for injury sustained by him by raising the street, to his injury, in front of his property. At common law an injury of this kind is not actionable, and such was the rule in this state prior to the adoption of the constitution of 1875. Nebraska City v. Lampkin, 6 Neb. 27. Section 21 of the bill of rights of the constitution of 1875 is as follows: "The private property of no person shall be taken or damaged for public use without just compensation therefor." The above section, without the words "or damaged," was in our former constitution (Sec. 13, Art. I., Constitution of 1866). The words "or damaged," therefore, were without doubt added to the section for the purpose of extending a remedy to the owner of the property in all cases where his property has been damaged by the work done. Nor is the right to recover restricted to such injuries as were designated torts at common law. The question is not whether the work was skillfully and carefully performed or not, because if the property of the party has been damaged by the work, however carefully and skillfully performed, he is entitled to compensation for such damages. In other words, the right to recover does not depend upon the skill or care, or the want of it, with which the work was performed, but whether when the work, if carefully and skillfully done, has injuriously affected or damaged the plaintiff's property. If so he is entitled to recover. If the work is unskillfully or carelessly performed, so that additional damages result from that cause, it is probable that a recovery can be had therefor, but that question is not before the court.

In Reardon v. City of San Francisco, 6 P. 317 at 325 the supreme court of California say: "We cannot say that the convention inserting in the constitution of this state the word "damaged," in the connection in which it is found, and the people in ratifying the work of the convention, intended to limit the effect of this word to cases where the party injured already had a remedy to recover compensation. They engaged in no such empty and vain work. It was intended to give a remedy as well where one existed before as where it did not, to superadd to the guaranty found in the former constitution of this state and nearly all other states, a guaranty against damage where none previously existed." These remarks are applicable in this state. Our former constitution required compensation to be made for property taken. If, however, no portion of the property of the party injured was taken, and the work was skillfully and carefully done,...