Hawver v. City of Omaha

• Decision Date: 09 December 1897
• Parties: HAWVER v. CITY OF OMAHA ET AL.
• Court: Nebraska Supreme Court

52 Neb. 734

73 N.W. 217

HAWVER

v.CITY OF OMAHA ET AL.

Supreme Court of Nebraska.

Dec. 9, 1897.

Syllabus by the Court.

The city of O., claiming to act under and by virtue of condemnation proceedings previously had, took possession of, and dedicated and improved as a public street, property of the defendant, who, in an action against the city, recovered the value of the property appropriated on the ground that the attempted condemnation was void for want of jurisdiction. Subsequently the city, by proceedings in due form, assessed plaintiff's abutting property, together with other lots similarly situated, with half the cost of grading and improving said street, whereupon the latter so sought to restrain the collection of such assessment, alleging as ground therefor the invalidity of the condemnation proceeding. Held that, by electing to pursue his remedy for the value of the property appropriated, he had recognized the easement of the public therein, and is now estopped to call in question the title of the city to said street.

Appeal from district court, Douglas county; Ferguson, Judge.

Action by Samuel Hawver against the city of Omaha and others to restrain the collection of a special tax. Judgment was rendered in favor of plaintiff, and defendant city appeals. Reversed.W. J. Connell, for appellant.

Alfred Pizey and Leavitt Burnham, for appellee.

POST, C. J.

This was a proceeding by the plaintiff, Samuel Hawver, in the district court for Douglas county, to restrain the collection of a certain special tax or assessment to cover one-half the cost of grading Sixth street, in the city of Omaha, from a point 500 feet south of Credit Foncier addition to Bancroft street. The plaintiff is, according to the allegations of his petition, the owner of tax lot 11, section 26, town 15, range 13 E., in Douglas county, of which the defendant city, on the 19th day of November, 1888, for the purpose of extending Sixth street from the point above mentioned, took possession, and appropriated a strip 60 feet in width by 1,287 feet in length; that in appropriating said property the city assumed and claimed to act under and by virtue of a certain pretended ordinance, but that said ordinance is, in so far as it applies to plaintiff's property, without authority, and void, for reasons particularly alleged. It further appears that in the year 1892 an ordinance was duly passed and approved “for the gradingof Sixth street from the south line of Credit Foncier addition, * * * and directing the board of public works to take the necessary steps to cause said work to be done,” pursuant to which the city, by its agents and servants, entered upon plaintiff's premises within the limits of the strip above described, “and within the lines of Sixth street, so pretended to be opened and extended, and dug, tore up, excavated, and removed a large quantity of earth from plaintiff's said land”; that said acts of the defendant city were wholly unauthorized by the plaintiff, and amounted to a trespass on the part of said defendant. Thereafter, in the year 1893, an ordinance was enacted and approved “levying a special tax and assessment on certain lots and real estate in the city of Omaha to cover one-half the costs of grading Sixth street from 500 feet south of Credit Foncier addition to Bancroft street,” whereby the sum of $3,571.09 was assessed and levied against the plaintiff's said property, but which assessment is illegal and void, for reasons hereinbefore stated. An answer was filed, admitting, in effect, the allegations of the petition except so far as they relate to plaintiff's title, and the alleged invalidity of the condemnation proceeding by the city of the right of way through ...