McGavock v. City of Omaha
| Decision Date | 04 April 1894 |
| Docket Number | 5337 |
| Citation | 58 N.W. 543,40 Neb. 64 |
| Parties | ANNIE MCGAVOCK v. CITY OF OMAHA |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before DAVIS, J.
AFFIRMED.
Francis A. Brogan, for plaintiff in error.
W. J Connell and E. J. Cornish, contra.
See opinion for citations.
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, further pleads as follows:
That on or about the 19th day of June, A. D. 1883, she became the owner of lot 1, in block 51, 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 property with but 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 144.5, or eight and one-half feet lower than the former, or Phillips grade, and the change in the grade on the north and east sides of said lot was 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 51, 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 further alleges 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 provided 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 a municipal corporation duly organized and existing as a city of the metropolitan class; also admitted that prior to the year 1883, while existing as a city of the first class, it fixed the grades on Chicago and Twenty-first streets, on which the property described in the petition abuts on the north and east, and that said streets were never worked to grade, but alleges that the grades on these streets were surveyed and established at different times and did not conform to each other; that as so fixed, the grade of Chicago street was more than ten feet below the grade on Twenty-first street; and if said streets had been worked to grade as alleged in petition, the property described in the petition would have been greatly damaged for residence property or any other purpose, and Chicago street would have been more than ten feet below Twenty-first street at the point of intersection of said streets on which the said property abuts on the east and north, and Chicago street would have been below the present grade complained of by plaintiff.
Defendant further admitted that by its grade ordinance No. 104, approved March 30, 1889, it ordered the grades of portions of Chicago and Twenty-first streets changed in such a manner that at the intersection of the streets, at the northeast corner of the lot described in the petition, the elevation was 144.5 feet, but alleges that the elevation of Chicago street by grade established prior to this change was 137.93 feet, and sixteen feet below the established grade of Twenty-first street at the same point; admitted further, that it ordered the street to be worked to the grade fixed by ordinance No. 104, and caused the work to be done, and thereby changed the former grade at Chicago and Twenty-first streets to conform to the grade fixed by said ordinance No. 104; admitted the statements of the petition in reference to the alley, but alleges that there was good and sufficient access to the land or lot through the alley from Twenty-second street, and also alleges that the property had been greatly benefited by the changes of grades and working of streets; and further answering, denies each and every other allegation in the petition.
Then follow allegations in which it is stated in substance that when the change was made in the grades of said streets by ordinance No. 104, appraisement was made and damages assessed in the regular and legal manner as provided in such cases; and after due and legal notice to the owner of the property described in the petition, the appraisers, who were duly appointed, caused notice to be given by publishing grade ordinance No. 104 in the Omaha Evening World-Herald, the official newspaper of the city, on the 6th day of April, 1889; that the appraisers assessed, as the damages to said property, the sum of $ 700, and reported their action to the city council, which body confirmed the report; that the sum so ascertained as damages to the property was tendered to and accepted by Alexander McGavock, the husband of the plaintiff, Annie McGavock, and that no appeal was ever taken from the award of damages made in the appraisement proceedings.
To this answer the plaintiff replied as follows: "Comes now the plaintiff and for reply to the amended answer of the defendant, admits that Alexander McGavock is the husband of this plaintiff, and resides on the property described in the plaintiff's petition, and denies each and every allegation set forth in said amended answer, except as stated and admitted in the petition of the plaintiff."
A jury was impaneled and trial had. During its progress the following stipulation was filed:
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