McGavock v. City of Omaha
|40 Neb. 64,58 N.W. 543
|MCGAVOCK v. CITY OF OMAHA.
|04 April 1894
|Supreme Court of Nebraska
1. A notice must be given by a city of proceedings to assess the damage to property which will be caused by a proposed change of the grade of a street in said city, and of the time and place where the appraisers appointed for the purpose of assessing such damages will meet, in order that the owner of the property so damaged may have an opportunity to be heard in his own behalf.
2. The fact that the ordinance changing the grade of a street was published in the official paper of the city enacting such ordinance, in the manner required by law, after its enactment, where the ordinance so published merely provides for the appointment of appraisers by the mayor, and makes no provision for their meeting or its time or place, will not be sufficient notice to parties, owners of property abutting on the street where the grade is to be changed, of the appraisement proceedings; and this is especially true where the charter of the city provides that from the appraisement proceedings the party may have an appeal, and that the proceedings shall be exclusive of any other remedies, as the right to an appeal implies the right to notice, and it is immaterial that the legislature has not, in the charter of the city, made any provision for notice, or required any to be given. If the notice is not given, the appraisement proceedings will not exclude the party of any remedy, but such party may commence an action at law to recover damages caused by such change of grade to property of which he or she is the owner.
3. Where a city, by its charter, is invested with certain powers, or the control and regulation of certain matters, and the charter fails to prescribe or direct the mode of exercise of the powers so conferred, the council may act by resolution, and it will be as effectual as would an ordinance passed for the same purpose.
4. Under the section of a city charter which provides as follows: “The mayor and council of a city governed by this act, shall have the power to establish by ordinance the grade of any street, alley or avenue within the city, and when the grade of any street, avenue or alley shall have been so established, such grade shall not be changed except by a vote of two-thirds of the council and not then until the damages to property owners, which may be caused by such change of grade, shall have been assessed and determined by three disinterested appraisers, who shall be appointed by the mayor and council for that purpose, who shall make such appraisement, taking into consideration the benfits, if any, to such property, and file their report with the city clerk within ten days after receiving the notice of their appointment, and the amount of damages so assessed shall be tendered to such property owners, or their agents, before any such change of grade shall be made,”-- held, that an ordinance which by its terms established grades upon certain streets of the city named in the ordinance, and made no provision for the appointment of appraisers and assessment of damages, as required by the charter, when a change of grade was sought to be effected, and, as far as the record in the case on trial discloses, no appraisers were appointed or assessment of damages had, did not change the grades upon the streets named, where valid grades had been established prior to the enactment of such ordinance; that the section of the charter above quoted is mandatory in its provisions, and the appointment of appraisers, assessment of damages, and tender of the same to the parties damaged are conditions precedent to the taking effect of any ordinance enacted by the city council, the enforcement of which would be to change a grade previously established.
5. The action of the trial court in sustaining an objection to certain testimony offered by plaintiff, and not allowing the testimony to be introduced, considered, and held that, if such action was erroneous, it was error without prejudice.
6. Facts which appear in the evidence of a case, on a point not put in issue by the pleadings, cannot be made the basis for a judgment for one of the parties, unless the pleadings are made to conform to the facts on proper motion, and leave obtained of the court to make such amendment.
Error to district court, Douglas county; Herbert J. Davis, Judge.
Action by Annie McGavock against the city of Omaha to recover damages because of the change in the grade of streets. There was judgment for defendant, dismissing the action, and plaintiff brings error. Affirmed.Francis A. Brogan, for plaintiff in error.
W. J. Connell and E. J. Cornish, for defendant in error.
Annie McGavock, plaintiff in the court below, filed a petition in the district court of Douglas county, on January 31, 1890, in which, after alleging that the defendant is a city of the metropolitan class, she further pleaded as follows: Plaintiff demanded judgment in the sum of $5,000, and costs. To this petition an answer was filed by the defendant city, and reply to the answer by plaintiff. Afterwards the city filed what is styled in the record an “amended and substituted answer,” in which it admitted that it was...
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Lincoln Street Railway Company v. City of Lincoln
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DiSt v. Tri-State Land Co.
...Young, 4 L. R. A. (N. S.) 169 (14 Wyo. 146, 82 Pac. 946, 116 Am. St. Rep. 994), beginning with page 173. Plaintiffs cite McGavock v. Omaha, 40 Neb. 64, 58 N. W. 543, to sustain their proposition. Although the writer of the opinion in that case seems to think that the authorities preponderat......
Lincoln St. Ry. Co. v. City of Lincoln
...be as effectual as it would be by ordinance for the same purpose. Fulton v. City of Lincoln, 9 Neb. 358, 2 N. W. 724;McGavock v. City of Omaha, 40 Neb. 64, 58 N. W. 543;City of Omaha v. Birkhauser, 37 Neb. 521, 56 N. W. 303. With respect to the authority given by subdivision 63 of section 6......
Enterprise Irrigation District v. Tri-State Land Company, 17,522
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