Kime v. Cass Cnty.

• Decision Date: 20 October 1904
• Parties: KIME ET AL. v. CASS COUNTY ET AL.
• Court: Nebraska Supreme Court

71 Neb. 677

101 N.W. 2

KIME ET AL.

v.CASS COUNTY ET AL.

Supreme Court of Nebraska.

Oct. 20, 1904.

Syllabus by the Court.

1. Under the Constitution of 1866, as well as that of 1875, mere passive acquiescence by a landowner in the taking of his property for a public use, unaccompanied by any conduct indicative of an affirmative assent thereto, and not continued for the statutory period of limitations, is not a waiver of his right to compensation therefor, and cannot be made so by statute.

On rehearing. Former decision adhered to.

For former opinion, see 99 N. W. 546.

AMES, C.

This case is before us upon a rehearing from a former decision prepared by Mr. Commissioner Duffie and concurred in by Messrs. Commissioners Kirkpatrick and Letton. Upon a re-examination of the record we do not find that in the preparation of the former opinion anything of importance was overlooked, or that the commissioners or court fell into any error. We do not think it incumbent upon us to repeat the recital of facts contained in the former opinion. There are two vital matters disclosed thereby upon which the conclusion is based, both of which, we think, are justified by the record. The first is that no damages were appraised or provision made for their payment before or at the time of the attempted establishment of the alleged public road in controversy. Under the Constitution of 1866, as well as under that of 1875, such omission defeated the alleged right to appropriate the land to a public use. If, as counsel for appellee contend, the statute of 1866, under which the proceedings were had, contemplated that the right of the landowner should be treated as waived by failure to demand compensation before or at the time of the taking, we are of opinion that to that extent the enactment was void. If the Legislature could rightly require of the landowner one affirmative and initiatory act as a condition precedent to obtaining damages, they might require of him any other, or a series of acts which might be difficult or onerous, or, in some circumstances, impossible of performance, and so the constitutional guaranty might thus be seriously impaired or wholly frittered away. We are of opinion that the spirit, if not the letter, of the Constitution, requires that the public seeking to appropriate private property to its use should, unless damages have been waived by some affirmative and unequivocal act, take steps of its own motion to ascertain their amount and...