Smith v. City of Omaha

• Decision Date: 16 December 1896
• Docket Number: 7990
• Citation: 69 N.W. 402,49 Neb. 883
• Parties: GEORGE W. SMITH ET AL. APPELLANTS, v. CITY OF OMAHA ET AL. APPELLEES
• Court: Nebraska Supreme Court

69 N.W. 402

49 Neb. 883

GEORGE W. SMITH ET AL. APPELLANTS, v. CITY OF OMAHA ET AL. APPELLEES

No. 7990

Supreme Court of Nebraska

December 16, 1896

APPEAL from the district court of Douglas county. Heard below before AMBROSE, J.

REVERSED.

E. W Simeral and George W. Doane, for appellants.

W. J Connell, contra.

OPINION

POST, C. J.

This was an action in the district court for Douglas county by George W. Smith, John A. Creighton, Alvin Saunders, James Neville, James J. Brown, Abraham Martin, Eliza A. Towle David T. Mount, Samuel R. Johnson, Nathan B. Falconer, Mary C. Denise, Gilbert M. Hitchcock, Leah Rosewater, and Emily J. Briggs, the purpose of which was to perpetually enjoin the collection by the city of Omaha of certain special assessments hereafter more particularly described. William Bushman and Charles G. Davidge, who claim an interest in the subject of the controversy in common with the plaintiffs, were, on motion, permitted to intervene and join in the prosecution of the cause, which resulted in a decree for Saunders, Rosewater, and Falconer as prayed, and a dismissal of the several bills for want of equity, so far as they concern the other plaintiffs and intervenors, and from which an appeal has by the unsuccessful parties been prosecuted to this court. The material facts disclosed by the pleadings and proofs are as follows: The council of the city of Omaha, in the year 1890, by ordinance, provided for a change of the grade of Douglas street, between Sixteenth and Twentieth streets, pursuant to which the mayor, with the consent of the city council, in due form appointed three disinterested free holders, to determine and assess the damage to property owners on account of such change of grade. The appraisers mentioned, having qualified by taking and subscribing an oath to faithfully and impartially discharge the duties of their said offices, proceeded from a personal examination of the property affected by such change of grade to find and award damages resulting therefrom to twenty separate lots, in the aggregate sum of $ 32,012, but without reference of any character to the other lots or subdivisions thereof so affected. The council, upon the approval of the return or award aforesaid, and while sitting as a board of equalization as provided by the city's charter, proceeded to apportion the damages thus awarded to the several lots and parcels of land adjudged to be benefited by said improvement. An ordinance was subsequently adopted by which, after a recital of the facts herein stated, it is provided: "The cost of damages for the change of grade of Douglas street, in the city of Omaha, from Sixteenth street to Twentieth street, said damages being the sum of $ 32,057, be, and the same is hereby, levied according to special benefits by reason of said change of grade upon the following lots" found to be benefited by the proposed improvement, some two hundred in number, with the amount assessed against each thereof. There was, as already intimated, except as to Saunders, Rosewater, and Falconer, no finding of damage in favor of any of the plaintiffs, nor is there any finding, unless by implication, respecting special benefits to the lots found to be damaged by such change of grade. The report of the appraisers, to which reference has been made and which is the basis of the subsequent action by the city council, is as follows: "The undersigned, three disinterested freeholders of the city of Omaha, having been duly appointed by the mayor, with the approval of the council, to assess the damage to the owners, respectively, of property and land affected by the change of grade declared to be necessary by ordinance No. 136, on Douglas street from Sixteenth to Twentieth street, having duly accepted said appointment, and qualified as required by law, do hereby certify and report that we have faithfully and impartially discharged the duties of our appointment, and after careful personal examination of said property and land, and consideration of the damage to said owners, respectively, by reason of such change of grade, we have and do assess as the damage to said owners respectively the sums set opposite each of said owner's names as shown by schedule B hereto attached, and which we refer to as part of this our assessment and report."

The form of the exhibit mentioned in the foregoing report is sufficiently illustrated by the first entry appearing thereon, viz.: "Lillian Jacobs, lot 7, block 108, $ 690.00." The ascertainment of damage in the manner here indicated, upon the establishment or change of grade of streets, avenues, or alleys, is authorized by section 116 of the charter of the city of Omaha (Compiled Statutes, ch. 12a, entitled "Cities of the Metropolitan Class"), viz.: "The mayor and council of any city governed by this act shall have power by ordinance to establish the grade of any street, avenue or alley in the city, and when the grade of any street, avenue or alley shall have been heretofore established, or when the grade of any street, avenue or alley shall be established and approved as herein provided the grade of no street or part of a street shall be changed unless the consent in writing is first obtained of the owners of lots or lands abutting upon the street or part of street where such change of grade is to be made, who represent a majority of the feet front thereon, and not then until the damages to property owners which may be caused by such change of grade shall have been assessed and determined by three disinterested freeholders who shall be appointed by the mayor and council for that purpose, who shall make such appraisement, taking into consideration the benefits, if any, to such property, and file their report with the city clerk; and the amount of damages so assessed shall be tendered to such property owners or their agents as soon as the funds for that purpose are obtained from the assessments of such damages upon property benefited by reason of such change of grade, or otherwise realized; Provided, That no street, avenue or alley shall be worked to such change of grade until the damages so assessed shall be tendered to such property owners or their agents." Authority to assess the damage occasioned by improvements of the character here involved against the property specially benefited thereby, is conferred upon the city council by section 119 of the chapter above cited, viz.: "The council shall have power and is hereby authorized to assess the damages awarded or recovered for grading, change of grade, or for the appropriation of private property, upon the lots and lands benefited, which shall abut or be adjacent to the street, avenue or alley graded, or for the opening, extending or widening of which private property shall be appropriated, or on which the grade shall be changed, and in the case of appropriation of land for widening of a street, avenue or alley, the council may consider, for the purpose of determining benefits and equalizing such assessment, whether any portion of the street, avenue or alley had been previously donated from any lot or piece of land abutting or adjacent thereto."

The primary question suggested by the record and arguments of this cause is the sufficiency of the findings of damages and benefits as the basis of the subsequent...