79 Neb. 441 | Neb. | 1907
The plaintiff OAvned property abutting the north side of L street between Thirty-Eighth and Thirty-Ninth streets in the city of South Omaha. L street Avas much used, and the whole tide of travel passed by the property of the plaintiff. He OAvned a business building at the corner of Thirty-Eighth and L streets, which Avas used by him for a hotel and saloon. The travel east and west upon L street made his lots desirable for business purposes. This Avas the condition of his property Avhen the city closed L street from Thirty-Eighth street west to Thirty-Ninth street, and vacated the south half of L street between Thirty-Eighth and Thirty-Ninth streets. On the half thus vacated the city constructed a viaduct, which started at
1. In the first instruction the jury were told that the only question for its consideration was the amount of damages suffered by plaintiff on account of the depreciation in the value of his property caused by the vacation of L street and the erection of the viaduct mentioned in the plaintiff’s petition; that its verdict must be for the plain tiff in some amount; but that, in considering damages sustained, it imist be damages to the realty, and not to any business conducted by the plaintiff. Exception is taken to so much of this instruction as tells the jury it must find for the plaintiff in some amount, the contention being that, upon the theory of law contended for by the defendant, the-jury might have found for the defendant. If the plaintiff was entitled to recover the depreciation in value of his property caused by the closing of the street and the erection of the viaduct, this instruction was right; for, while this depreciation was not estimated at so great
2. The defendant also excepts to so much of the instruction of the court as provided that the jury might take into consideration the question whether travel was diverted from the surface of the street in front of the plaintiff’s property, and whether or not his premises were as desirable and accessible for business purposes after the closing of the street and the construction of the viaduct, and that it might also consider whether it appeared from the evidence that the business carried on by the plaintiff was affected by the building of the viaduct. These were given to the jury as elements of damages, and the jury were in each case informed that the measure of damages was the difference between the value of the property before the construction of the viaduct and closing of the street and immediately thereafter. It was pertinent to show that the business of the occupant of the property was affected by the improvement, and that the access thereto was less convenient, not as independent items of damage, but for the sole purpose of 'determining the difference between the market value of the property before and after the construction. City of Omaha v. McGavock, 47 Neb. 313; Chicago, B. & Q. R. Co. v. O’Connor, 42 Neb. 90. This definition was plainly kept before the jury in each of the instructions complained of, and there is no error in this respect.
We therefore recommend that the judgment of the district court be affirmed.
Affirmed.