Schaller v. City of Omaha
| Decision Date | 08 February 1888 |
| Citation | 36 N.W. 533,23 Neb. 325 |
| Parties | ELLEN SCHALLER, PLAINTIFF IN ERROR, v. CITY OF OMAHA, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before NEVILLE, J.
REVERSED AND REMANDED.
A. C Wakeley, George W. Ambrose, George B. Lake, and Savage Morris & Davis, for plaintiff in error, cited: Gottschalk v. C., B. & Q. R. R., 14 Neb. 550. Harmon v Omaha, 17 Id., 548. Wagner v. Gage County, 3 Id., 237. McElroy v. Kansas City, 21 F. 257. Chambers v. R. R. Co., 69 Ga. 320. Carpenter v. Jennings, 77 Ill. 252. Brown v. Beatty, 34 Miss. 227. N. O. R. R. Co. v. Moye, 39 Miss. 374.
John L. Webster, for defendant in error, cited: Carpenter v. Jennings, 77 Ill. 250. Todd v. R. R. Co., 78 Id., 530. Shawneetown v. Mason, 82 Id., 337. C. & P. R. R. Co. v. Francis, 70 Id., 238. City of Atlanta v. Green, 67 Ga. 386. Moore v. Atlanta, 70 Id., 611. Denver v. Bayer, 7 Col., 113. Spencer v. R. R. Co., 23 West Va., 406. Julia Building Assn. v. Bell Telephone Co., 88 Mo. 258. Reardon v. San Francisco, 66 Cal. 492.
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,
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 enclosed 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 two thousand dollars, 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 grounds, 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 fourteen 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 streets named would require the removal of more than thirteen thousand cubic yards of earth, to remove which would cost, as shown by the testimony, from twenty-five hundred to thirty-five hundred dollars; that the house would sustain considerable damage by lowering it to the grade, which one of the witnesses fixes at a very considerable sum, which need not be named here. There is also proof as to damages from the destruction of trees on the lots in question, fixed by one of the witnesses at the sum of three hundred and sixty dollars. The aggregate of the damages, as proved, amount to a very large sum, and greatly in excess of the special benefits sworn to by the witnesses. A number of real estate agents were called by the city, who stated that the benefits to the property in question from the grading of the streets named, and the general advance in property, were at least four thousand dollars, two thousand dollars of which should be credited to the general advance in property, and two thousand to special benefits. Other witnesses called by the city stated generally that they thought the property had not been damaged, as in their opinion it was worth as much after the improvement as before, but upon cross-examination they estimated the cost of grading the lots at from twelve hundred to fourteen hundred dollars. A number of real estate agents were called by the plaintiff, who testified that the lots in question were not benefited by the grade and that it was a positive injury. One of such witnesses, Mr. H. B. Grey, testified as follows:
Q. Do you know the grade that was made on California street in 1884?
A. I do not remember the time it was made, but I know how it is.
Q. You have bought and sold real estate and dealt considerably in it for the last few years?
A. Yes, sir.
Q. And are you familiar with the prices of real estate?
A. Yes, sir.
Q. State to the jury whether or not, in your opinion, the grading of California street and 24th street in front of this Schaller property was a benefit to it or not, considered as a...
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