Segear v. Westcott
| Decision Date | 22 November 1906 |
| Citation | 110 N.W. 379,77 Neb. 550 |
| Parties | SEGEAR v. WESTCOTT. |
| Court | Nebraska Supreme Court |
The owner of land, in the possession of a tenant whose lease provides that the lessor may sell or dispose of any part thereof by making a corresponding reduction in the rent, may without the consent of the lessee dedicate a part thereof to the public for a highway.
Commissioners' Opinion. Department No. 1. Appeal from District Court, Douglas County; Howard and Kennedy, Judges.
Action by James Segear against George Westcott. Judgment for plaintiff, and defendant appeals. Reversed and remanded.W. C. Lambert, for appellant.
J. W. Eller, for appellee.
July 5, 1900, defendant agreed verbally to pay plaintiff $25 per 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 upon by defendant to prove the establishment of the street are substantially as follows: In June, 1901, the president of the United Real Estate & 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...
To continue reading
Request your trial