88 Neb. 83 | Neb. | 1910
This is an action to enjoin the construction of a sideAvalk. The plaintiff is the OAvner of a lot facing north on Chicago street, in the city of Omaha, and abutting to the east on TAvelfth street Avhich runs north and south. Chicago street has been improved by permanent curbs, gutters, and sewers, and Twelfth street tit this point has like improvements, and is also paved as far north as Chicago street. Twelfth street is 100 feet wide, and 20 feet on each side is reserved for sideAvalk use. On the plaintiffs lot there are three frame buildings opening on Twelfth street, one of which, a double house standing nearest the corner of Chicago street, is occupied by him as a dwelling, and the other two, which are one-story cottages, are rented for residence purposes. The defendant is the owner of the lot immediately south of that belonging to plaintiff. The rear end of this lot is directly across the alley from plaintiffs, and it faces on Davenport street, Avhich is the first street south. The petition alleges that the defendant is constructing on this lot a building, the plan of Avhich contemplates the erection of a raised sidewalk the full length of the lot and extending 20 feet into Twelfth street; that the proposed raised Avalk Avill be not less than seven feet above the sideAvalk grade and Avill be covered Avith a gravel roof some ten feet high, which Avill specially damage plaintiff by-cutting off the light, air, and vieAV of plaintiff’s premises from the south, will cut off the sunlight from a portion of the premises, and will permit snoAAr, ice and sleet to accumulate thereon in the Avinter time, and thus make the premises less desirable and less comfortable for a home; that it will obstruct and cut off the direct and convenient thoroughfare to and from the principal business part of the city from the lot; Avill constitute a public nuisance, and be specially detrimental and damaging to plaintiff’s property. The prayer ,was for an injunction to restrain the construction-of any sideAvalk above the present sideAvalk grade on Twelfth street.
The evidence shows that all of plaintiff’s buildings arc built close to the lot line facing east upon Twelfth street, that there is a space of five or six feet between the front of his houses and the present sidewalk, which has been fenced in by him, that the sidewalk is an old one made of boards, and that a large cottonwood tree stands in the sidewalk space. North of Chicago street Twelfth street is unpaved, and at the distance of about a block north is blocked by railroad tracks intersecting it. A large part of the travel of the workmen to and from the Union Pacific shops is over the sidewalk in question, and the street is also used by traffic to and from the Illinois Central freight station, which lies to the eastward on Chicago street. While the plaintiff and his tenants could reach the main business portion of the city by going one block west on Chicago street, thence south on Thirteenth street, it has been their custom for years to use Twelfth street in front of defendant’s lot, which is, in fact,- their most direct route to the business center.
After the defendant purchased the lot, and before commencing the work of building, an ordinance was passed by the city authorities granting defendant permission to maintain platforms or shipping docks on the west side of Twelfth street, 20 feet in width, to be constructed of concrete and cement, to be not more than seven feet high, and to be provided with steps at the ends and corners, the platform to be covered with a gravel roof with iron supports. After this ordinance was passed and approved, the plaintiff, learning of the purpose of defendant to erect this dock, procured a temporary injunction restraining the defendant from obstructing the sidewalk space, which was afterwards made perpetual. Defendant appeals.
The evidence for the defendant is that it is not its intention to erect a shipping dock such as is described in the
The conclusion we draw from the evidence on this point is that defendant’s anxiety for the level walk is not so much on account of concern for public safety as for convenience and economy in the cost of operation of its plant. There was much evidence adduced before the trial court which bears little relation to the real issue before the court. There is some testimony to the effect that the present grade of Twelfth street at this point is % of an inch to the foot, and that -to the southward toward Douglas street the grade is much steeper, but this is indefinite, not based, so far as shown, upon any plat, profile, or survey, and not given by an engineer or proved by an ordinance. There is no evidence whatever to show that if the sidewalk is built on a level to the entrance, and then sloped to the alley, it would in any way interfere with public travel along the street. In fact, the conclusion we draw from the evidence is that a substantial cement sidewalk, 20 feet in width, would afford much better facilities for the public than the old brick sidewalk which occupied the ground previous to defendant’s purchase of the property. The only witness produced to testify as to the effect of the proposed construction upon the view, and upon the passage of air along the sidewalk space if the contemplated improvement is
The plaintiff argues that the sidewalk is a part of the street; that the title to the streets is held by municipalities in trust for the use and benefit of the public; that the easements of view and of light and air belong to every one owning property abutting on the street, and will be protected by the courts against illegal encroachments — citing Davis v. City of Omaha, 47 Neb. 836; Jaynes v. Omaha Street R. Co., 53 Neb. 631; Bischof v. Merchants Nat. Bank, 75 Neb. 838, and Chapman v. City of Lincoln, 84 Neb. 534.
We are satisfied with the law as laid down in the cases cited, but we do not see that it aids the plaintiff. Eliminating from our consideration the ordinance passed by the city council, for the reason that the defendant is not now seeking to proceed under the terms of the same and in conformity therewith, the question that first presents itself is whether the plaintiff has shown such a special damage to himself as warrants him to maintain an action to abate a public nuisance. The real inquiry is not whether the council had power by ordinance to authorize the defendant to erect such an obstruction as is described in the ordinance, but whether the proposed construction of the sidewalk at a level instead of on a slope shall be restrained at the suit of
The plaintiff was justified in beginning the action and should recover his costs in the district court, but the judgment of the district court is reversed and the cause dismissed.
Reversed and dismissed.