Omaha Loan & Trust Company v. County of Douglas

• Decision Date: 05 June 1901
• Docket Number: 9,417
• Citation: 86 N.W. 936,62 Neb. 1
• Parties: OMAHA LOAN & TRUST COMPANY v. COUNTY OF DOUGLAS
• Court: Nebraska Supreme Court

86 N.W. 936

62 Neb. 1

OMAHA LOAN & TRUST COMPANY v. COUNTY OF DOUGLAS

No. 9,417

Supreme Court of Nebraska

June 5, 1901

ERROR from the district court for Douglas county. Tried below before POWELL, J. Affirmed.

AFFIRMED.

McCoy & Olmsted, for plaintiff in error.

George W. Shields, contra.

OPINION

HOLCOMB, J.

Plaintiff in error instituted an action against the defendant in error for the recovery of damages to real estate alleged to have been sustained by reason of grading down a street, on which the real estate abutted, in the town of Florence, in defendant county. From a verdict and judgment in favor of the county the plaintiff prosecutes error to secure a reversal thereof.

The grading was done under the provisions and authority of sections 1a to 1d, inclusive of chapter 78 of the Compiled Statutes, entitled "Roads." The sections referred to are a part of the laws of 1889, being chapter 8 of the Session Laws, entitled "An act to authorize the county board of any county in which a city of the metropolitan, or cities of the first class having over twenty-five thousand inhabitants, is situated, to grade, pave, or otherwise improve roads leading thereto, and to assist such city in the improvement of such roads within the corporate limits as are extensions of roads leading thereto." At the time of the grading resulting in the alleged damages the plaintiff held a mortgage on the real estate affected, and before the commencement of the suit became the purchaser and legal owner thereof by proceedings brought for the foreclosure of the mortgage and sale of the mortgaged premises, the property failing to sell for enough to satisfy the debt.

It is conceded that no notice was given to the legal owner or the mortgagee at the time of, or prior to, the act of grading complained of. By paragraphs 9 and 10 of the petition it is averred:

"9. That no action whatever was taken by the defendant or board of commissioners for the assessment of the damages done to said property and suffered by the plaintiff as mortgagee thereof or as suffered by the holder of the legal title thereto, and that no effort has been made even at this date on the part of said defendant or its board of commissioners to determine the amount of damage done to said premises by reason of the said grading of State street in front thereof suffered by this plaintiff and by the holder of the legal title of said premises during said time.

"10. That neither the said defendant nor its board of commissioners ever caused personal or any notice to be served on this plaintiff of the defendant's intention to grade said State street and especially that part thereof in front of the aforesaid premises, although this plaintiff all the while had its chief office and its chief officers within the city of Omaha in said Douglas county; nor ever served or attempted to serve the said Hannah K. Kilborn with either personal or public notice of the defendant's intention to grade that part of said State street; and said board of commissioners of said defendant never gave this plaintiff or said Hannah K. Kilborn an opportunity to be heard upon the question of grading said State street."

The damages claimed and the cause thereof are stated in the eleventh paragraph, as follows:

"11. * * * That the west half, or 330 feet of the north side of said block, has been left by said grading a perpendicular wall and all ingress from said street to the west half of said lot and all egress from said street to the west half of said lot to said street has thereby been wholly cut off and destroyed; that by reason of the grading of said State street in front of the aforesaid premises, the said defendant damaged and lessened the value of said premises in fully the net amount of $ 3,000 and that the plaintiff, because of its interest in said premises during the whole of the time of said grading, has been damaged thereby by the county of Douglas in the sum of $ 900.54 together with interest thereon at the rate of ten per cent. per annum from the twenty-first day of September, 1891, until paid."

The cause was submitted to the jury on instructions directing them to find from the evidence the actual damages sustained by the plaintiff, if any, and return a verdict accordingly.

It is now urged that the court erred in not authorizing a recovery of at least nominal damages, on the theory that the failure of the county commissioners to give the notice to property owners contemplated by the statute, providing for the mode of assessment of damages sustained or benefits received by reason of the proposed improvement, before the work of grading was engaged in, was an actionable wrong, giving to the plaintiff the right to recover, in any event, nominal damages, when it is found that no actual loss was suffered by reason of the grading complained of. We do not think the position of counsel tenable, or that a recovery is permissible, except for the actual damages sustained by reason of the grading of the highway. The petition is not framed, nor was the case tried, on the theory that the county commissioners' failure to follow the provisions of the statute was a breach of official duty, for which an action in damages would lie. The damages alleged were not based on the failure to notify the plaintiff of the contemplated improvement and have an assessment of damages and special benefits contemplated by statute, but because the grading done on the street abutting its property impairs its value, for which it was entitled to be compensated in damages. While it is a rule held to in this and in many other jurisdictions that a breach of official duty to one suing for damages by reason thereof will ordinarily support a judgment for nominal damages, even though actual damages are not shown, the present case does not fall within the rule. No damages were sustained, nor are any pleaded by the plaintiff by reason of the failure of the county commissioners to comply with the statute as to assessment of damages, and under the law he may recover all damages sustained, even though no notice be given. For the taking of or damage to his property he is entitled to be compensated to the extent of the loss suffered, regardless of the question of notice, which is a part of the special proceeding pointed out by statute in the assessment by county boards of damages and special benefits, and which must be taken before the board has jurisdiction to act; and if not followed, the injured party yet has his right, under the law, to any damages sustained. The plaintiff has lost no right nor suffered any injury that can not be fully protected or compensated for, even though the statutory notice be not given. Under the provisions of ...