55 Neb. 1 | Neb. | 1898
By its answer appellant claims that the strip of land in controversy in this action is a part of Twenty-seventh street, in the city of Lincoln, and asks to have its title thereto quieted and confirmed as against Henry E. Lewis, who is conceded to be the fee owner of the tract of which the disputed strip is a part. The city claims title by dedication, by prescription, and under an order of the county commissioners of Lancaster county purporting to establish a public road over the locus in quo. The assertion of title by virtue of a dedication is based on the fact that the disputed strip is embraced in the plat of an addition to the city of Lincoln filed in the office of the county clerk of said county by James O. Young, a former owner of the tract of which the land in question formed a part. The filing of this plat was manifestly ineffectual as a statutory dedication, because it did not profess to devote this strip to the use of the public as a street, and for the further and more forceful reason that Young was not the owner of the strip when the plat was filed, having
It is said by counsel for appellant that Lewis’ occu
It appeal's from the record that on November 1,1882, the county board of Lancaster county made an order for the establishment of a section-line road over and across the-locus in quo. The proceedings were taken under the general provisions of the road law, but there is no legal evidence before us that there was any substantial compliance therewith. However, as the order contemplated the establishment of a road on a section-line, it was undoubtedly valid as a preliminary order. (Throckmorton v. State, 20 Neb. 647; McNair v. State, 26 Neb. 257; Howard v. Brown, 37 Neb. 902; Rose v. Washington County, 42 Neb. 1; Barry v. Deloughrey, 47 Neb. 354; Oyler v. Ross, 48 Neb. 211.) But before the county commissioners could physically appropriate the land in question it was necessary that they should give the owner notice and ascertain his damages and pay, or provide for the payment, of the same. Section 21, article 1, of the constitution declares: “The property of no person shall be taken or damaged for public use without just compensation therefor.” And it has been repeatedly held that befoi’e a landowner can be required to surrender possession of his land for a public use his damages must be first ascertained and either paid or proper provision made for their payment. (Republican Valley R. Co. v. Fink, 18 Neb. 82; Zimmerman v. County of Kearney, 33 Neb. 620; Livingston v. Commissioners of Johnson County, 42 Neb. 277.) In the last mentioned case it was further held that this compensation must be provided whether the landowner makes claim for damages or not. And in the case of Barry v.
AFFIRMED.