State ex rel. Beatty v. City of Omaha

• Decision Date: 20 March 1883
• Citation: 15 N.W. 210,14 Neb. 265
• Parties: THE STATE, EX REL. SAMUEL BEATTY, v. THE MAYOR AND COUNCIL OF OMAHA ET AL
• Court: Nebraska Supreme Court

15 N.W. 210

14 Neb. 265

THE STATE, EX REL. SAMUEL BEATTY, v. THE MAYOR AND COUNCIL OF OMAHA ET AL

Supreme Court of Nebraska

March 20, 1883

ORIGINAL application for mandamus.

WRIT DENIED.

Redick & Redick, for relator.

John D Howe, for respondents.

OPINION

MAXWELL, J.

This is an application for a mandamus to compel the mayor and council, the marshal, and street commissioner of the city of Omaha, to remove a certain frame building from 12th street in said city. The relator states in his application that he is a saloon keeper in said city; "that on or about the 1st of February, 1880, he procured a lease of the building then and now standing on the west side of 12th street, between said Farnham and Douglas streets, and on the corner of the alley, for -- years from that date; that he took out his license as required by law, and at a great expense fitted up said building, placed therein a large stock of goods, and engaged in the retail liquor and cigar business, and soon built up a large and lucrative trade, which was constantly increasing until the date of the grievances hereinafter stated. * * * That on or about the 1st day of March, 1882, the Nebraska National Bank, a corporation organized under the national banking act of the congress of the United States, purchased a large building, 132 feet in length and twenty-two feet in width, then standing on the north-west corner of Farnham and 12th streets, and on lot 8, in block 121, and unlawfully moved the same out over the sidewalk into said 12th street, so that the same occupied about twenty-four feet of said street for a distance of about 136 feet, the rear of said building standing within twenty feet of the front doors of your petitioner's place of business, and in so doing tore up and mutilated the sidewalk running from Farnham street to the alley on the west side of said 12th street; that the only way wagon or carriage travel on said 12th street between Farnham and Douglas streets can be accommodated is by a narrow passage way between said building and the sidewalk on the east side of said 12th street; that said building obstructs and hinders traffic of every kind upon said street, and is a great inconvenience to the traveling public in general, and those who do business on that street in particular, and by reason whereof your petitioner is greatly and especially damaged; that by reason of said obstruction your petitioner's place is out of sight of said Farnham street and persons who pass that way, and has been rendered almost inaccessible; that in plaintiff's business the most important element of success is the procurement of a well known and popular locality; that there is no other place in said city as desirable and advantageous to your petitioner for his said business as was his present one before the removal of said building into said street; that since said removal his trade has been constantly falling off, owing to the impassable condition of said street and the obscurity of his location, and the fact that pedestrians are driven to the east side of said 12th street, all caused by the removal of said building into and the consequent obstruction of said street." etc.

There are other allegations as to the obstruction of the street as to the public at large, to which it is unnecessary to refer. A number of the ordinances of the city are also set out in the application, which do not require notice.

To warrant the court in granting a mandamus, it must appear that the relator has a clear legal right to the performance by the respondents...