Kirkendall v. City of Omaha

• Decision Date: 16 January 1894
• Docket Number: 4813
• Parties: FREEMAN P. KIRKENDALL ET AL. v. CITY OF OMAHA
• Court: Nebraska Supreme Court

57 N.W. 752

39 Neb. 1

FREEMAN P. KIRKENDALL ET AL. v. CITY OF OMAHA

No. 4813

Supreme Court of Nebraska

January 16, 1894

ERROR from the district court of Douglas county. Tried below before HOPEWELL, J.

AFFIRMED.

Montgomery Charlton & Hall, for plaintiffs in error, contending that there was error in the instructions, cited: Wagner v Gage County, 3 Neb. 242; Fremont, E. & M. V. R. Co v. Whalen, 11 Neb. 591; Schaller v. City of Omaha, 23 Neb. 332; Chicago, K. & N. R. Co. v. Wiebe, 25 Neb. 544.

W. J. Connell and E. J. Cornish, for the city:

It was for the jury to determine whether or not the property had been damaged, and if so, whether or not the grade was the cause of the damage; but this must be determined from facts offered in evidence and not as conclusions of witnesses. (City of Omaha v. Kramer, 25 Neb. 490; Burlington & M. R. Co. v. White, 28 Neb. 167; Roberts v. New York E. R. Co., 28 N.E. [N. Y.], 486.)

The instructions given were not erroneous. (City of Omaha v. Schaller, 26 Neb. 524; Lowe v. City of Omaha, 33 Neb. 587; Bohm v. Metropolitan E. R. Co., 29 N.E. [N. Y.], 802; Sutro v. Metropolitan E. R. Co., 33 N.E. [N. Y.], 334; Hanscom v. City of Omaha, 11 Neb. 37; Lansing v. City of Lincoln, 32 Neb. 470; 2 Dillon, Mun. Corp., p. 933; 2 Desty, Taxation, p. 1238.)

A. J. Poppleton, also for defendant in error.

OPINION

The opinion contains a statement of the case.

RYAN, C.

The plaintiffs in this action, who are the plaintiffs in error in this court, sought in the district court of Douglas county Nebraska, a recovery against the defendant on account of alleged injury to their property in blocks 9 and 12, in West Omaha, caused by the grading of Leavenworth street on the south side of block 12, and the streets connecting therewith, to-wit, Thirty-seventh and Thirty-eighth streets, extending along the east and west sides of said blocks. The plaintiffs claim that prior to the establishment and working of said streets to their present grade their property, described and set out in their petition, was on a high and level elevation of considerable extent, and very desirable and valuable for residence purposes; that by reason of the grading complained of, deep cuts had been made along the south side of said block 12, and on the east and west sides thereof, and along the south and west sides of block 9, which rendered the whole of said property much less desirable than it was before, and caused the plaintiffs to be damaged in the amount of $ 25,000, for which judgment was asked. The defendant admitted that it was a municipal corporation, and that the grades of Thirty-seventh and Thirty-eighth, and Leavenworth, and First and Second streets were established as plaintiffs alleged, but denied each and every other allegation of the petition, and denied that said property was damaged on account of said grading. The defendant furthermore claimed in its answer that plaintiffs' property was specially benefited and improved in a sum equal to, or in excess of, any damage sustained by the plaintiffs on account of the grading complained of. The reply of the plaintiffs was in denial of each matter contained in the answer.

1. The first alleged error complained of arises in respect of the introduction of testimony of witnesses Robert Eason, Robert Nields, and D. V. Sholes. To Robert Eason was proposed the question following: "Q. If the grade had been left as it was before the city commenced grading in 1887, and Leavenworth street had been put to grade there on that basis, what would have been the effect on the market value of the property in general? In other words, was there anything that you know of to cause a depreciation in the market value of the property in question other than the grading of the streets in 1887 and 1888 by the city?" Accompanying this question was a tender of the evidence thereby sought to be elicited, in the following words: "That the only cause of the depreciation in the value of the property in controversy is the grading of the streets complained of, and that in the opinion of the witness there was no other ground for said depreciation." This witness was not required in the course of his evidence to give any estimate as to the value of the property affected, either before or after the grading complained of. The following testimony, however, had been elicited from him previous to the propounding of the question, upon the refusal to allow which error is predicated. This antecedent evidence was as follows:

Q. State what was the general effect of the grading of Leavenworth street as it was graded in 1887 and 1888, and also of the grading of Thirty-seventh and Thirty-eighth streets to conform to the grade of Leavenworth street, upon the market value of blocks 9 and 12, whether valuable or detrimental and injurious.

A. It was particularly detrimental and injurious to block 12. As to the value of the property on block 9, it did not affect it so materially,--only slightly in comparison with block 12.

Q. What would you say as to whether or not that detrimental effect would be of a large and serious character or not?

A. It would be of a large and serious character on block 12.

This evidence, received without objection, was of the same general tendency as was that sought to be elicited by the question as to which an objection was sustained. In the redirect examination of Mr. Coe, one of the plaintiffs, this testimony was given:

Q. Is there any element that you know of, from your experience and knowledge from real estate transactions and the situation of property, that prevented the advancement of your property like other property, other than the fact of this deep cut on Leavenworth street?

A. None that I know of.

The...