Segear v. Westcott

• Decision Date: 22 November 1906
• Docket Number: 14,502
• Citation: 110 N.W. 379,77 Neb. 550
• Parties: JAMES SEGEAR, APPELLEE, v. GEORGE WESTCOTT, APPELLANT
• Court: Nebraska Supreme Court

110 N.W. 379

77 Neb. 550

JAMES SEGEAR, APPELLEE, v. GEORGE WESTCOTT, APPELLANT

No. 14,502

Supreme Court of Nebraska

November 22, 1906

APPEAL from the district court for Douglas county: HOWARD KENNEDY JR., JUDGE. Reversed.

REVERSED.

W. C Lambert, for appellant.

J. W Eller, contra.

EPPERSON, C. AMES and OLDHAM, CC., concur.

OPINION

EPPERSON, C.

July 5, 1900, defendant agreed verbally to pay plaintiff $ 25 a month for the privilege of hauling garbage over a tract of land of which plaintiff was lessee. Defendant paid the stipulated amount until August 5, 1901, and plaintiff brings this action to recover for 22 months thereafter. Defendant admits the making of the contract, and alleges that from and after August 5, 1901, he used a public highway which the authorities of South Omaha had established over plaintiff's leased property. Plaintiff denies that the highway was established, and on this issue alone the rights of the parties depend. The facts relied on by defendant to prove the establishment of the street are substantially as follows: In June, 1901, the president of the United Real Estate and Trust Company, which was the owner of the land in controversy and plaintiff's lessor, made a written proposition to the mayor and council of South Omaha, agreeing to cause the strip of land here in controversy to be dedicated to the public as a highway in consideration of $ 100, payable to his company, and a further consideration that the city would make certain specified improvements. Pursuant to this proposition the city council issued its warrant to the real estate company and proceeded with the improvement of the road substantially as specified in the proposition of the company. Afterwards the road was used generally by the public, the plaintiff herein, however, at all times maintaining that the public had no rights therein. The warrant payable to the real estate company was not called for, nor was it delivered, until after this suit was instituted, when it was delivered to the company and accepted. At no time did the company object to the establishment of the street. In the district court the jury returned a directed verdict for the plaintiff, and the defendant appeals.

The only theory upon which the plaintiff can recover is that the alleged street was established without the payment of damages to him and to the prejudice of his rights under the lease. The evidence did not disclose the...