State, ex rel. Barnum v. Omaha & Council Bluffs Street Railway Company

• Decision Date: 29 December 1916
• Docket Number: 18981
• Parties: STATE, EX REL. W. H. BARNUM, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

161 N.W. 170

100 Neb. 716

STATE, EX REL. W. H. BARNUM, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT

No. 18981

Supreme Court of Nebraska

December 29, 1916

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.

AFFIRMED.

John L Webster and William Ross King, for appellant.

John P Breen, contra.

SEDGWICK, J. ROSE and FAWCETT, JJ., not sitting.

OPINION

SEDGWICK, J.

The district court for Douglas county granted the relator a peremptory writ of mandamus commanding the respondent "to forthwith temporarily hoist or elevate or, if necessary, temporarily remove the overhead electric wires and wire works maintained by it at the crossing or intersection of Eighteenth street and Burt street, in the city of Omaha, so as to allow the passage and moving of the building now in the street at said intersection and about to be moved across said crossing by the relator, Barnum, the cost of so elevating or removing, temporarily, said wires and wire works shall be borne by the respondent, Omaha & Council Bluffs Street Railway Company." The respondent has appealed to this court.

The relator is a house-mover, and is licensed as such under an ordinance of the city of Omaha, which provides: "It shall be unlawful for any person other than a licensed house-mover to move, raise, lower or support on temporary blocking or jacks or wedges any building or any wall or a part of a wall of any building within the corporate limits of the city of Omaha. * * * The bond required to be filed by any applicant for a license as house-mover shall be in the sum of three thousand dollars ($ 3,000) with good and sufficient securities. * * * Before moving any building upon, along or across any public street, alley or any public ground in the city of Omaha, a permit shall be first obtained from the building inspector by such licensed house-mover which permit must be countersigned by the city engineer, authorizing and allowing such house-mover to move the building designated upon, along or across the streets necessary to be crossed. It shall be the duty of the city engineer to determine upon what streets it shall be necessary for the house-mover to cross in the moving of any structure, and he shall designate the streets upon, over and across (which) such building or structure shall be moved. * * * It shall be unlawful for any such house-mover under the permit to move the structure for which permit is given over, upon or along any other street than the streets mentioned in the permit. * * * Before a permit is issued for any of the operations defined by this article, and before any of the operations defined therein shall have been begun, the building inspector shall examine the building, structure or part thereof on which it is desired to perform such operations, and said building inspector shall refuse to grant a permit for same if any of the following conditions are found to exist. No building shall be moved, in the city of Omaha, which is in such condition that it is worth less than fifty per cent. of the cost of a similar new one. * * * Whenever it shall be necessary for any licensed house-mover to move along or across any street, alley, or other public thoroughfare or public property, any building or other structure of such height or size as to interfere with any wires, cables or other overhead work or the poles or other supports of such overhead work belonging to any individual, association or corporation operating and maintaining same in accordance with any ordinance of the city of Omaha relating thereto, such party or parties, firm or corporation or as many of them as are jointly operating such overhead work and the supports thereto shall, within twelve hours after...