Patrick v. City of Bellevue

• Decision Date: 05 April 1957
• Docket Number: No. 34119,34119
• Citation: 82 N.W.2d 274,164 Neb. 196
• Parties: William R. PATRICK and Wilhelmina H. Patrick, Appellants, v. The CITY OF BELLEVUE, a municipal corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 274

82 N.W.2d 274

164 Neb. 196

William R. PATRICK and Wilhelmina H. Patrick, Appellants, v. The CITY OF BELLEVUE, a municipal corporation, et al., Appellees.

No. 34119.

Supreme Court of Nebraska.

April 5, 1957.

Syllabus by the Court

1. A city, in establishing and maintaining a free dump where the residents of the city are privileged to dispose of garbage, waste materials, and miscellaneous debris, performs a governmental function.

2. Temporary damage to land of an individual caused by the establishment and maintenance of a public improvement by a city for a public use is such a damage

as is required to be compensated by Article I, section 21, of the Constitution.

3. If private property is damaged for a public use by a city, the Constitution requires just compensation must be made the owner of the property although the city may have been performing a governmental function and notwithstanding the use was not and did not create a nuisance.

4. The fact that the city is not liable for the negligence of its officers, agents, or employees when the city is engaged in the performance of a governmental function does not exempt it from liability for damage to private property which could have been done under its powers of eminent domain.

5. Private property damaged by a city for a public purpose without an actual taking thereof is required by the constitutional provision to be justly compensated.

6. It is not indispensible that the constitutional provision be set out or its existence alleged in the statement of a cause of action if the litigant otherwise pleads and proves a right of recovery because of it.

7. The measure of damages to a growing crop that is destroyed by the wrongful act or omission of another is the value of it at the time of the destruction.

8. Damage based upon the value of an unmatured crop is analogous to profits lost and is governed by the same rule precluding recovery in cases of either uncertainty or remoteness.

9. The question of whether damage based on the destruction of an unmatured crop is speculative is decided by whether there is sufficient data to determine with reasonable certainty the probable value it would have had if it had matured.

William R. Patrick, Papillion, Smith & Smith, Omaha, for appellants.

John E. Rice, Dixon G. Adams, Bellevue, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPEL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

The purpose of this action was to enjoin appellee from maintaining and operating its public city dump in such a manner as to cause many different and objectionable kinds of waste materials to be transported to and deposited upon lands of appellants and to recover damages for loss of the use of the land and loss of crops thereon caused by the deposit of the objectionable materials from the dump upon the land. The order of the trial court dismissing certain parties out of this case during the trial became final in that court. The contesting parties on this appeal are appellants and the city of Bellevue, designated appellee.

The following is the substance of the petition of appellants:

Appellants owned the real estate described. Appellee had for 3 years or more used a ravine located on Tax Lot 8-B in Section 35 about one-half mile east of the land of appellants as a public garbage dump in which had been deposited garbage accumulated daily in the city of Bellevue consisting of may kinds of objectionable materials and miscellaneous insoluble substances. The ravine was part of a natural drainage course for surface waters for a large watershed contiguous thereto which in times of rainfall or melting snow flowed westerly in the drainage course to State Highway No. 75, which is immediately adjacent to the east line of the land of appellants; normally to and through a culvert in the highway; and southerly in the road ditches paralleling the highway. There was on or about June 22, 1949, a rainstorm in the area during which large quantities of waste materials of the character above referred to were carried and transported from the dump in the drainage course to the culvert which was obstructed and closed thereby and because thereof floodwaters and waste materials from the dump were diverted across the highway to and upon the lands of appellants, inundating 15 acres of growing corn thereon and creating a condition which prevented further cultivation of the crop and caused its total loss. The flooding of the land impaired the utility thereof. Within 4 years of the commencement of this case large quantities of material placed in the dump of the kinds herein referred to were carried to and spread upon pasture land of appellants by waters flowing in the drainage course. They have prevented cultivation or the mowing or clearing of the land of willows and noxious weed growths and have destroyed the utility of about 40 acres thereof for any useful or profitable purpose. The proximate result of the acts of appellee has been damage to appellants in the sum of $2,500.

The parts of the foregoing appropriate to the second cause of action of the petition were included therein by reference. It was further stated therein that parts of the land were leased for the year 1949 for a crop share rental of two-fifths of the crops produced. The acts of appellee destroyed the utility of 15 acres of the land and the crop thereon and caused the tenants damage in the amount of $50 per acre. They expended time and labor in the preparation and planting of the crop and for seed and cultivation thereof before the flooding by the waters which were of the reasonable value of $150. The cause of action of the lessees was assigned to appellants. Appellants ask that appellee be enjoined from maintaining and operating the city dump referred to in the foregoing and sought judgment for damages in the sum of $3,400.

A supplemental petition stated an additional claim of damage. The substance thereof is the following: The appellee has since June 1949 continued to dump large quantities of waste materials in the ravine and on the premises used as the city dump. A heavy rain in that locality on or about May 8, 1950, caused large quantities of waste material from the dump to be washed to and upon the lands of appellants and large quantities of floodwaters to be diverted thereon because of the obstruction of the culvert in the course of drainage with the result that the utility of the lands was destroyed for any useful or gainful purpose and appellants were thereby damaged in the sum of $1,500 for which they also ask judgment.

The district court found that appellants were not entitled to recover damages from appellee because the maintenance by it of a free dump site for the city and its inhabitants was the performance of a governmental function and not a corporate or proprietary function and the city was not liable therefor since no issue of maintenance of a public nuisance was involved. The city at the trial withdrew resistance to granting an injunction because the dump had been discontinued at the location complained of by appellants. The court granted a permanent injunction as appellants prayed and dismissed the case as to the damage claims of appellants. The motion of appellants for a new trial of the issue as to damages was denied. This appeal is from the judgment dismissing the damage claims of appellants and the denial of their motion for a new trial.

Appellants were at the times important to this case the owners of Tax Lot 9 in Section 35, Township 14 North, Range 13, and 130 acres in the northern part of the northeast quarter of Section 3, Township 13 North, Range 13, known as the McLane place, in Sarpy County. There were about 19 acres in Tax Lot 9 which adjoined State Highway No. 75 on the west and lies north of a railroad overpass. The McLane place lies south of the overpass and Tax Lot 9 and adjoins the state highway on the west. A culvert across the highway is located in the southern part of Tax Lot 9 and immediately east of the McLane place.

Appellee leased Tax Lot 8-B in Section 35, Township 14 North, Range 13, Sarpy County, in November 1948 and established a free land fill public dump area thereon for the inhabitants of the city to deposit their refuse and waste materials. It was about one-fourth of a mile northeast of the culvert in the highway. The drainway extended past the dump to and through the culvert. The only natural drainage in the area from the dump site was to the culvert, across the highway, and south in a ditch along the west side of the highway past the McLane place. This means of drainage of surface waters had been sufficient prior to June 22, 1949, to protect the land of appellants from flooding. The dump was maintained and used from November 1948 until 1951. Appellee built a dike with step-downs on each side for diverting the water around the main dump area and to prevent carriage of debris by drainage waters. There was no complaint made to appellee prior to June 22, 1949, of any materials from the dump having been washed down to, on the highway, or over it and into the land adjoining the highway.

A rainstorm occurred in that area on that date variously described as a 2-to-3 inch rainfall in a couple of hours and not unusual; as 2 inches or better in a couple of hours but causing to flooding elsewhere; as heavier than usual; and as so heavy that there was not 10-foot visibility for 20 minutes. The dike or dam in the ravine was broken by the force of the water, materials from the dump were washed down the ravine to the culvert, and the passageway of it was closed. The water and debris backed towards the north a distance of some 200 to 400 feet from the culvert, flowed across the highway onto the land of appellants, and was the proximate cause of damage to them.

The issue of damages was resolved against appellants by the trial court on the basis that appellee in maintaining a free dump site for itself and its...