52 Neb. 734 | Neb. | 1897
Tbis was a proceeding by tbe plaintiff Samuel Hawver, in tbe district court for Douglas county, to restrain the collection of a certain special tax or assessment to cover one-balf tbe cost of grading Sixth street in tbe city of Omaha from a point 500 feet south of Credit Foncier Addition to Bancroft street. Tbe plaintiff is, according to the allegations of bis petition, tbe owner of tax lot No. 11, section 26, town 15, range 13 east, in Douglas county, of which tbe defendant city, on tbe 19th day of November, 1888, for tbe purpose of extending Sixth street from tbe point above mentioned, took possession
“The said defendant for a further defense herein alleges that on the 19th day of October, 1892, the said plaintiff commenced a certain action in said district court of Douglas county, Nebraska, wherein he, the said Samuel Hawver, plaintiff, was plaintiff, and the city of Omaha,*736 defendant, was defendant/ alleging and setting forth in his said petition filed in said action that the city of Omaha, on the 19th day of November, 1888, did enter upon and take possession and appropriate to its use for the purpose of the extension, opening, and creating of Sixth street from the south line of Credit Foncier Addition to Bancroft street, the certain strip, piece, and parcel of ground in plaintiff’s petition filed in this action described, and in said petition did declare the value of said strip or piece of ground to be of the sum of eight thousand dollars ($8,000), and in said petition did pray for a judgment for said sum with interest from said 19th day of November, 1888. The said defendant further says that the said plaintiff at the time the said defendant entered upon said strip or piece of ground did elect to allow the said defendant to hold and retain the same as a public street, as it has ever since done, and did subsequently elect, to-wit, October 19th, 1892, to bring his action for damages to recover the value of said strip of ground on the claim that the same had been appropriated by said defendant for the purpose aforesaid. And this defendant; further says that after the answer had been filed in said action commenced October 19, 1892, the said cause came on to be heard before said district court and was tried to a jury in said court and a verdict was rendered in favor of said plaintiff and against said defendant for the sum of eight hundred dollars ($800), on which verdict a judgment was duly entered by said court in favor of said plaintiff and against said defendant, which judgment remains in full force and effect. And this defendant further alleges and claims that said plaintiff by reason of the premises is estopped from claiming that said strip of ground so entered upon and appropriated as aforesaid was not a part of a public street which said defendant had a right to improve by grading or otherwise.”
To the foregoing amended answer the plaintiff failed to reply, thus admitting the truth of the allegations thereof
It will be observed from the foregoing statement, first, that the alleged vice of the assessment pertains to the condemnation proceeding instituted by the city in order to acquire the right of way through the plaintiff’s property; second, that the plaintiff, at and subsequent to the entry by the defendant upon the strip of land here in controversy, elected to allow the defendant “to hold and retain the same as a public street,” and that he subsequently, in an action pending in the district court for Douglas county, recovered judgment against the defendant in the sum of $800, being the value of the land appropriated by the latter. It is upon the foregoing facts argued that the plaintiff is now estopped to deny the defendant’s title to the street, or to call in question the regularity of the proceedings antecedent to the assessment here involved. We entertain no doubt of the soundness of that proposition. The plaintiff, by knowingly permitting the city to grade and use the property appropriated as a public street under a claim of right, and by prosecuting to judgment his remedy for damage, must be held to have waived any irregularity in the condemnation proceedings, and should not at this time be heard to assail the title of the city in order to evade payment of the assessment complained of. It is a well established and salutory rule which requires an election between two inconsistent remedies, and by which the voluntarily pursuing of one will be construed as a waiver of the other. (2 Pomeroy, Equity & Jurisprudence, 965. See, also, Foley v. Holtry, 41 Neb., 563; First Nat. Bank of Chadron v. McKinney, 47 Neb., 149; Building & Loan Ass’n of Dakota v. Cameron, 48 Neb., 124; American Building & Loan Ass’n v. Rainbolt, 48 Neb., 434.) The foregoing-observations render unnecessary an examination of the
Reversed.