56 Neb. 220 | Neb. | 1898
The east 60 feet of the south half of lot 8, in block 1, in Park Place, an addition to the city of Omaha, abuts upon Burt street, in said city. The authorities of the city of Omaha caused said street to be graded in front of said premises to the established grade. Appraisers were appointed to assess the damages to abutting property owners by reason of said grading, who found and reported that no damages were occasioned by the improvement, which report was thereafter approved and confirmed by the city council, and no appeal therefrom was taken. .The bringing of the street to the established grade caused the water in a’ small stream which flowed ¡adjacent to said premises, and also the surface water of the neighborhood, to back upon said, property, and to become stagnant. Subsequently, an ordinance was passed by the city declaring the premises a nuisance by reason of the existence of stagnant water thereon, the city authorities caused the lot to. be filled with earth,
It is strenuously insisted by counsel for plaintiff that the special assessment in dispute is illegal because no request was made upon the owner of the lot to fill the same before the filling of the property by the city. This contention is predicated upon section 29, chapter 12a, Compiled Statutes 1895, known as the “Charter of Cities of the Metropolitan Class,” which reads as follows: “The mayor and council shall have power to require any and all lots or pieces of ground within the city to be drained, filled or graded, so as to prevent stagnant water, banks of earth, or any other nuisance accumulating or existing thereon; and upon the failure of the owners of such lots or pieces of ground to fill, drain, or grade the same when so required, the council may cause such lots or pieces of ground to be drained, filled, or graded, and the cost and expense thereof shall be levied upon the property so filled, drained, or graded and collected as other special taxes.” This provision contemplates that a lot owner in the city of the class to which Omaha belongs is entitled to notice before said section can be enforced against him, since the power therein conferred upon the city to levy the costs and expenses of draining, filling, or grading his premises is contingent “upon the failure of the owner of such lots -or pieces of ground to fill, drain, or grade
In the'briefs and at the bar counsel on either side ably argued, among others, the following propositions:
1. Is the determination whether a nuisance exists or not a judicial question?
2. Has a city - council the power to determine what constitutes a nuisance?
3. Was the levy of the special assessment in question a violation of section 6, article 9 of the constitution of tMs state?
4. Is the abatement of a nMsance by a city a legitimate exercise of the police power of the state?
5. Oan a city create a nuisance upon the lot of an individual and abate it at Ms costs and expense?
In our view the last proposition alone requires consideration, as the determination thereof is decisive of t. ease. It is stipulated in the agreed statement of facts that the city of Omaha graded Burt street from Thirtieth to Thirty-sixth streets, and “that prior to the grading of said Burt street, a small stream of water fed by springs in the block immediately southwest of the premises above described flowed adjacent to said premises; that the grading of said Burt street stopped the outflow of said creek and formed a dam so as to prevent the water from escaping, and thereby caused the water which rose from said small stream and other surface water of the immediate neighborhood to back up and collect upon the above described premises, which it would not have done but for the grading of said' Burt street, as aforesaid.” It requires no argument to show that whatever nuisance existed on the lot in dispute by the reason of the accumulation of stagnant water was
The doctrine that a municipal corporation which has created a nuisance upon the lot of an individual cannot then assess the costs of abating the same against the property, is sustainable upon the plainest principles of equity, and is fortified by authority. In City of Hanibal v. Richards, 82 Mo. 330, the city constructed an embankment in the street in front of defendant’s lots, which occasioned the water to accumulate on them and injuriously affect the health of the city. The defendant having refused to comply with an ordinance requiring him to fill the lots, the work wa's done by the city, and it brought an action to recover the cost and expense thereof. The court say: “Now, we are asked to hold, also, that the city may create a nuisance upon the lot of an individual, and then have it abated at his expense, if he refuse to do it when ordered. As well at once declare that one can acquire any rights to town or city lots which the municipal corporation is bound to respect. The city cannot create a nuisance upon the property of a citizen and compel him to abate it. * * * At a trifling expense at the time plaintiff passed the ordinance requiring these lots to be filled the pond could have been drained, and but for the neglect of the plaintiff to make such drain the nuisance complained of would never have existed. The judgment is reversed and the cause remanded. Ail concur.” In Weeks v. City of Milwaukee, 10 Wis. 186, the
There is no presumption that the lot owner was
It is insisted that plaintiff is not in a position to urge the invalidity of this special tax, inasmuch as he was not the owner of the lot at the time the same was imposed, and counsel cite the usury cases which hold that the person contracting to pay unlawful interest alone can plead the invalidity of the agreement. Those cases are not analogous. The defense of usury is personal to the borrower, his sureties and privies, who may waive it, therefore the purchaser of the equity of redemption, being neither a surety, nor in unity with Mm or the borrower, cannot plead usury in the contract. A tax levied against land for a public improvement attaches to, and follows, the property, and the defense that the assessment was illegal is not personal to the person Who at the time was the owner of the property, but ordinarily is available to the subsequent purchaser. The decree is
Affirmed.