49 Neb. 1 | Neb. | 1896
Samuel Hawver brought this suit in the district court of Douglas county against the city of Omaha to recover the value of certain of his real estate which he alleged the city, without any authority of law, had on the 19th of November, 1888, appropriated to its use for the purposes of a street. So much of the answer of the city as is material here was as follows: “The said city denies that on the 19th day of November, 1888, it entered upon, seized, or took possession of and appropriated to its use the said
1. Hawver owned what is known as “Tax Lot 11” in section 26, township 15 north, and range 13 east. On one side of this land was what is known as “Credit Fonder Addition,” to the south line of which extended Sixth street. On the other side of Hawver’s land, crossing an imaginary extension of said Sixth street at right angles, was Bancroft street. An extension of Sixth street in a straight line from the south side of “Credit Foncier Addition” to Bancroft street would pass through Hawver’s land. It is not disputed that in November, 1888, the city of Omaha extended Sixth street from the south line of “Credit Foncier Addition” to Bancroft street, and in so doing appropriated a strip of land 60 feet in width and 1,287 feet in length through said tax lot 11, but the contention of the city is that the strip of ground so appropriated by it for the extension of Sixth street had been prior to that time dedicated to the public for the purposes of a street by Hawver, and this was the only point litigated in the court below. At the close of the evidence the city requested the court to charge the jury as follows: “You are-instructed that if you find from the evidence that prior to-the commencement of this action the plaintiff dedicated the strip of ground in controversy as a part of Sixth, street, it would be your duty to return a verdict in this, action in favor of the defendant.” The court refused to. give this instruction and limited the jury to a consideration of the value of the real estate of Hawver appropriated by the city for the purposes of Sixth street. If the evidence introduced before the jury would have supported a special finding that Hawver had dedicated the-real estate to the public for the purposes of a street, then the court erred in refusing to give the instruction re
Q. You may state whether or not any plat was presented to you at the time of making this land contract.
A. Yes, sir.
Q. Describe that plat as near as you can.
A. It was not an engineer’s plat. It was a sketch that he had drawn off. He said he had drawn it to a scale and showed me how Sixth street would come through Ann Arbor street and Castellar street, and also the street on the east side of the half street.
Q. This plat of which they speak was a mere paper?
A. Yes, sir.
Q. You do not know whether it was ever filed or acted upon, or what was done with it?
A. No, sir. It was drawn up for the purpose of showing what might be done with the land. It was on stiff engineer’s paper.
Q. State whether or not Sixth street in front of your property since that time has been used as a street since it was graded. ■
A. Since last year, I believe.
Q. What was it before that time?
A. I understand it was a street before it could be used for travel.
Q. Why?
A. There was a ravine in front of my property.
Q. Do you remember the time that Sixth street, near Bancroft, was graded — when the dirt was taken out?
A. Yes, sir.
Q. When was that?
A. At the time they were grading Bancroft street-
Q. Who was grading Bancroft street?
Q. The contractor took the dirt off from Sixth and pnt it into Bancroft street?
A. Yes, sir.
Q. How far did that extend north from Sixth street at that time?
A. I would think about three hundred feet.
Q. To the point where the gully commences?
A. No, they did not go that far.
Q. What year was Bancroft street graded?
A. I think in 1888.
Q. Is it not a fact that Sixth street, when Bancroft street had been improved somewhat, was graded prior to 1890, and in the year 1888?
A. There has been dirt taken out of there; yes, sir.
Q. In what year was that?
A. At the time they graded Bancroft street. I could not say the year.
Q. It was in the year 1888?
A. I could not say the year.
Q. Can you approximately state?
A. It has been two or three years before this last grading was done.
Q. That was on the line of Sixth street, near Bancroft?
A. Yes, sir.
Q. And extended up to the point where the land fell off into this deep gully?
A. It extended something like three hundred or three hundred and fifty feet north of Bancroft street.
Q. Who took this dirt out of Sixth street near Bancroft?
A. The contractor that had the contract for Bancroft street.
Q. He went on there and took dirt out and carried it onto Bancroft street?
A. Yes, sir.
Q. Was that the contractor for the city for grading Bancroft street?
Q. His grades are made under the direction of the city engineer?
A. Yes, sir.
Q. Do you know that fact?
A. That is always the fact.
Q. Do you know that they are made under the direction of the city engineer?
A. I do not know; they generally give instructions; I only say the fact as I understand it. I do not know whether the engineer gave the instructions or not.
Q. So far as you know, he might have gone on and taken it by his own authority?
A. Yes, sir.
Q. Do you remember the time that Sixth street, near Bancroft, was graded — when the dirt was taken out?
A. Yes, sir.
Q. When was that?
A. The time that they graded Bancroft street.
Q. Who was grading Bancroft street?
A. The city.
Q. The contractor took the dirt off from Sixth and put it in Bancroft?
A. Yes, sir.
Q. What year was Bancroft street graded?
A. I think 1888.
• Q. This is the time that this dirt was taken out of there?
A. Yes, sir.
So far as the above bears upon the city’s exercising acts of control over the land in question prior to November, 1888, we think the only legitimate inference from this evidence is that the city contractors, while grading Bancroft street, without authority from anybody went upon the land of Hawver and took away dirt and used it in grading Bancroft street. There is no evidence that this was done under or by the direction of the city authorities, or any of them, nor with their knowledge, nor
Affirmed.