McGavock v. City of Omaha

• Citation: 40 Neb. 64,58 N.W. 543
• Parties: MCGAVOCK v. CITY OF OMAHA.
• Decision Date: 04 April 1894
• Court: Supreme Court of Nebraska

40 Neb. 64

58 N.W. 543

MCGAVOCK

v.CITY OF OMAHA.

Supreme Court of Nebraska.

April 4, 1894.

Syllabus by the Court.

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.

HARRISON, J.

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: “That on or about the 19th day of June, A. D. 1883, she became the owner of lot one, in block fifty-one, in the city of Omaha, county of Douglas, state of Nebraska; also a strip of land 20 feet wide and 132 feet long, adjoining said lot on the east, bought of defendant November 22, 1886, the same being situated within the corporate limits of the said city; that she purchased the first above described property from one B. F. Lowe; that she took possession of the premises, and has continued in possession; that she has erected valuable improvements on the lot, and fitted the same as a desirable residence for herself and family; that there are numerous and valuable shade trees growing on the lot, which add greatly to the beauty and convenience of the same as a residence; that, some time prior to her purchase and improvement of said lot as aforesaid, the said defendant had fixed the grades of Twenty-First street, upon which said lot abuts on the east, and of Chicago street, upon which said lot abuts on the north, and had caused the same to be surveyed by its engineer, but neither of said streets had been at any time worked or graded to said grade, so fixed and surveyed as aforesaid; that said grade, so fixed and surveyed as aforesaid, was known as the ‘Phillips Grade,’ and, had the said streets been worked to such grade, the plaintiff could have used her said property with slight injury or loss of value, and access to her said residence from both of the streets aforesaid would have been reasonably convenient, and no lowering of her lot or destruction of the trees and buildings thereon would have been necessary; but, on the contrary, the said property could then have been used as a home by the plaintiff for herself and family, and was in fact a convenient and desirable residence, and of great value to the plaintiff. The plaintiff alleges further that the said defendant, by and through its mayor and council, by its Grade Ordinance No. 104, approved March 30, 1889, ordered the grade of parts of said Chicago and Twenty-First streets to be changed in such a manner that whereas the elevation of the curbstone at the northeast corner of the plaintiff's lot, at the intersection of Chicago and Twenty-First streets, was 153 feet, yet, by the change so ordered by the ordinance, the elevation at the same point should be 144 1/2, or 8 1/2 feet lower than the former or Phillips grade, and the changes in the grade on the north and east sides of said lot were similar to the change at said intersection; that afterwards said defendant, by and through its mayor and council and other proper officers, ordered said streets to be worked to such grade as fixed by its Grade Ordinance No. 104 as aforesaid, and caused the same to be done, and has therefore changed the surface and grade of said street in the manner and to the extent of the difference between said former or Phillips grade and the grade fixed by Grade Ordinance No. 104 as aforesaid; that by reason of the change in the surface and elevation of such streets, so abutting on the plaintiff's lot as aforesaid, the plaintiff's said residence has been rendered almost inaccessible, and it can no longer be used by her as a home, except with great difficulty and inconvenience, and at great expense in the building of approaches and stairways; that although the streets on the north and east of the plaintiff's said lot were changed in their grades, as above set forth, yet the alley running east and west through the center of said block fifty-one, upon which alley the plaintiff's lot abuts on the south, has not been changed in grade, but remains the same as before; that there is thereby a high embankment remaining at the east end of the said alley, where the same opens into Twenty-First street, and all access from such street into said alley, and through it into the plaintiff's lot, is thereby prevented. The plaintiff alleges further that although the value of her said property has been depreciated to the extent of $5,000 by such change of grade and working of the same, and she has thereby been damaged in that amount, and although the said Grade Ordinance No. 104 provides for the appraisal of damages caused by such change of grade, yet, in fact, the said defendant has at no time caused the damages of the said plaintiff as aforesaid sustained to be appraised, and has not tendered nor paid to her, nor caused to be tendered or paid to her, any amount whatever in satisfaction of her said damages; that by reason of the acts and doings of the said defendant as aforesaid, and its neglect and failure to cause the amount of plaintiff's damages to be appraised, ascertained, and paid to her, she has been damaged in the sum of $5,000.” 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...