Schaller v. City of Omaha

• Decision Date: 08 February 1888
• Citation: 36 N.W. 533,23 Neb. 325
• Parties: SCHALLER v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

23 Neb. 325

36 N.W. 533

SCHALLER

v.CITY OF OMAHA.

Supreme Court of Nebraska.

February 8, 1888.

Syllabus by the Court.

In awarding just compensation for property damaged for public use, general benefits shared by the public at large cannot be considered, while special benefits to the property damaged may be.

Error to district court, Douglas county; NEVILL, Judge.

Action for damages, brought by Ellen Schaller against the city of Omaha, to recover for injuries to her property resulting from grading the adjacent streets. Judgment for defendant, and plaintiff appeals.A. C. Wakeley, G. W. Ambrose, George B. Lake, and James W. Savage, for appellant.

John L. Webster, for appellee.

MAXWELL, J.

This is an action to recover damages sustained by the plaintiff by reason of grading the streets bordering on her property in the city of Omaha. She alleges in her petition “that she is, and has been at the times herein mentioned, the owner in fee-simple, and in the actual occupancy, of the following described premises, to-wit: Lots one and two in block five in Sweesy's addition to the city of Omaha, county of Douglas, and state of Nebraska; that in the spring of the year 1878 she commenced the building of improvements upon said premises, with the purpose of making said premises a permanent home for herself and family; that she then erected thereon a large two-story frame dwelling-house, together with a barn and carriage-house, out-buildings, sheds, and a well and cistern, and such other appurtenances as usually appertain to a home, and, furthermore, embellished the said premises with ornamental and shade trees, which at the time of the injuries herein complained of had grown to a considerable size. The premises directly in front of plaintiff's house had also been sodded down at a considerable expense. That plaintiff's said lots are situated on the south-west corner of California and Twenty-fourth streets, fronting north on California street 132 feet, and east on 24th street 142 feet.” It is then alleged that, in 1884, ordinances were passed by the proper authorities of Omaha fixing the grades of the streets named, and providing for grading the same. “That, previous to said grade complained of, the premises of the plaintiff were accessible by a gradual ascent from about 23d street, and were easily approached from either 24th street on the east, or California street on the north, and the ground adjacent thereto was almost level. That the said grading of California street along the front of plaintiff's premises made a cut of about eighteen feet at the north-east corner of said lots, extending west the same depth along the whole front of said lots. That thereby it became necessary to cut and grade Twenty-fourth street to the level of California street at the place of their intersection, and the said grade and cut was made, and said cut so made on Twenty-fourth street extended southward the whole depth of plaintiff's lots, to-wit, 142 feet; said cut being about eighteen feet at the north-east corner of said lots, and gradually lessening to a cut of about twelve feet at the south-east corner of said lots. That said grade and cutting down of Twenty-fourth street necessitated the grading of the alley-way in said block five, and the same was so graded and cut down; the cut thereof being about twelve feet on the south-east corner of said lots, and gradually lessening and extending westward through said block. That, by reason of said grading and cutting in front of and at the side and in the rear of plaintiff's premises, she has been greatly and irreparably damaged. Her grounds, before accessible, are now, by their great elevation above the adjacent streets, become inaccessible by ordinary means of conveyance. That said grade and deep cuts render it absolutely necessary to lower the whole surface of said lots to the present level of the circumjacent streets; the doing of which will manifestly be a great expense to plaintiff. That said grade necessitates the lowering of said dwelling-house and barn and out-buildings to the street level. That thereby plaintiff's well and cistern will be entirely destroyed, as well as the shade-trees on said premises. That in the year 1881, and before said grade was established, plaintiff had erected on said lots, fronting on California street, a barn and carriage-house, at an expense of five hundred dollars; had inclosed her lots with a fence. That the steep embankment consequent upon said grade rendered said barn inaccessible and completely useless, and plaintiff was obliged to tear down the same, and erect a new barn upon said alley, and grade an approach thereto. That, in anticipation of said grade, plaintiff had taken up said fence, and set it back a foot or two beyond the line of said grade; but said grading was so negligently and carelessly done that her said fence was entirely destroyed. That thereby a row of shade-trees about said premises, which had been set out in 1878, were completely destroyed. That by reason of the premises, and her injuries in other respects, the plaintiff has been damaged in the sum of five thousand dollars.” The petition contains an appropriate prayer for relief. The city, in its answer, in effect denies the damage to plaintiff's property, and pleads special benefits in excess of the damage in the amount of $2,000, for which it prays judgment. There is a reply to the answer which need not be noticed. On the trial of the cause, the jury returned a verdict in favor of the defendant. A motion for a new trial was thereupon made by the plaintiff, upon the ground-- First, that the evidence was not sufficient to sustain the verdict; second, errors of law occurring at the trial; third, error in giving certain instructions named. The motion was overruled, and judgment entered on the verdict, dismissing the action.

The testimony shows that before the grading, the land immediately around the house in question was nearly level, gradually sloping towards the south and east; that in consequence of the grading the house was left at an average height of more than 14 feet above the level of the street; that in that condition it is almost inaccessible, except by means of stairs; that to bring the lots to a proper grade above the...