Lowe v. City of Omaha

• Decision Date: 18 December 1891
• Citation: 33 Neb. 587,50 N.W. 760
• Parties: LOWE v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

33 Neb. 587

50 N.W. 760

LOWE

v.CITY OF OMAHA.

Supreme Court of Nebraska.

Dec. 18, 1891.

Syllabus by the Court.

1. A petition in error must specifically point out the rulings of the trial court on the admission of testimony which are relied on for a reversal, or they will not be considered.

2. When city property is damaged by reason of the grading of the street upon which it abuts, the owner is entitled to remuneration. The difference in the market value of the property with the improvement and that without it, not considering general benefits shared by the general public, is the rule of compensation. In such case special benefits to the property directly attributable to the improvement may be set off against the damages sustained by the owner. Schaller v. City of Omaha, 23 Neb. 325, 36 N. W. Rep. 533.

3. The market value is not what the property is worth solely for the purpose to which it is devoted, but the highest price it will bring for any and all uses to which it is adapted, and for which it is available.

Error to district court, Douglas county; DOANE, Judge.

Suit by Sallie H. H. Lowe against the city of Omaha to recover damages caused by grading certain streets. Verdict and judgment for defendant. Plaintiff brings error. Affirmed.Kennedy & Gilbert, for plaintiff in error.

A. J. Poppleton, for defendant in error.

NORVAL, J.

The plaintiff in error is the owner of the north half of block 146 in the city of Omaha, and a strip of land 20 feet wide, and 264 feet long, adjoining said premises on the south. The half block consists of four lots, each being 66 feet by 132 feet. The property is bounded on the east by Sixteenth street, on the north by Harney street, and on the west by Seventeenth street. The following statement of the case we take from plaintiff's brief: In the year 1873 the city authorities established a grade upon Harney street, running east and west, in front of said premises, by which initial points of grades of Sixteenth and Seventeenth streets were fixed at their intersections with Harney street; the grade elevation at the intersection of Sixteenth and Harney being 118 feet, at the intersection of Seventeenth and Harney 135 feet, and at the intersection of Sixteenth and Howard streets the elevation was 100 feet. There was a break in the grade on Sixteenth street, midway between Harney and Howard, about opposite the south-east corner of the plaintiff's premises. The gradient of Sixteenth street along the east side of the plaintiff's premises was about 1 per cent., or 1 foot in 100 feet, and on Harney street along the north side of said premises 6.4 per cent. from Sixteenth to Seventeenth streets, which would have left the surface of the plaintiff's premises 4 or 5 feet above the curb line of Seventeenth street, and about 15 feet above the curb line of Sixteenth street. In the year 1883 the grade of Harney street was changed by the city, commencing at a point on the established grade line about midway between Sixteenth and Seventeenth streets, running westward to an elevation of 130 feet at Seventeenth street, in which year Sixteenth street was graded in conformity to the 1873 grade, and an approach was made on Harney from Sixteenth. In 1885 these grades were again changed by lowering the grade at Sixteenth and Harney 10 feet, and at Seventeenth and Harney 15 feet. From an appraisement of damages an appeal was taken by the plaintiff to the district court, and the work of grading commenced on Sixteenth, Seventeenth, and Harney streets. On November 7, 1885, the plaintiff commenced an action for damages for grading on Sixteenth street in 1883, for which no damages had been allowed, no proceedings having been taken to ascertain such damages. Issues were joined in this action, in which the defendant pleads special benefits in offset to the damages sustained. While the work of grading was being prosecuted, and early in 1886, another change of these grades was made by the city, again lowering them at the intersections of Sixteenth, Seventeenth, and Harney streets about four or five feet; and from those proceedings the plaintiff also appealed to the district court. These cases were, by the order of the court, consolidated and tried together. On the 25th day of February, 1889, a trial was commenced to a jury, and continued from day to day until March 6th, on which day a verdict was returned by the jury in favor of the defendant. The plaintiff's motion for a new trial was overruled, and judgment rendered on the verdict.

The petition in error contains seven assignments of error: (1) That the verdict is not sustained by sufficient evidence, and is contrary to law. (2) That certain errors of law occurred at the trial of said cause, which were excepted to at the time by the plaintiff. (3) The court erred in giving the 1st, 2d, 3d, 4th, 5th, and 6th paragraphs of the instructions of its own motion. (4) The court erred in giving instructions 1 to 9, inclusive, asked by the defendant. (5) The court erred in refusing to give the instructions requested by the plaintiff. (6) The court erred in giving all the instructions given, and refusing those asked by the plaintiff. (7) The verdict of the jury should have been for the plaintiff. No complaint is made in the brief filed by the plaintiff in error to the giving and refusing of instructions; therefore the 3d, 4th, 5th, and 6th assignments will be regarded as waived, and will not be considered by us.

Counsel contend that error prejudicial to the plaintiff was committed by the trial court in permitting the city to introduce testimony tending to show that the grading of the street increased the value of plaintiff's property for business purposes. We suppose this question was intended to be raised by the second ground of the petition in error, but this assignment is too general. When a party desires this court to review the rulings of the trial court on the admission or exclusion of testimony, he must specifically point out the alleged errors in the petition in error. This has been held in a long line of decisions. Tower v. Densmore, 8 Neb. 384, 1 N. W. Rep. 315;Shaffer v. Maddox, 9 Neb. 205, 2 N. W. Rep. 464;McCormick v. Drummett, 9 Neb. 384, 2 N. W. Rep. 729;Graham v. Hartnett, 10 Neb. 517, 7 N. W. Rep. 280;Birdsall v. Carter, 11 Neb. 143, 7 N. W. Rep. 751;Cook v. Pickrel, 20 Neb. 435, 30 N. W. Rep. 421. The relevancy of the testimony will not be now discussed, and will be considered hereafter only so far as is deemed necessary to the proper disposition of the other questions, which are sufficiently raised by the record.

The remaining assignments, the first and seventh, present the same proposition: Is the verdict sustained by sufficient evidence? The defendant claims that the plaintiff's property was not damaged by reason of the grading of the streets upon which the property abuts, for the reason that the special benefits to the property resulting directly from the improvement are equal to, or greater than, the damages sustained. The testimony shows that the property is situated near the business portion of the city, being separated from the court-house by a street, and only a block distant from the Bee and New York Life buildings. At the time the grades were changed there were upon the premises a large brick...