Nebraska City v. Lampkin

6 Neb. 27 | Neb. | 1877

Lake, Ch. J.

The defendant in error recovered a judgment in the court below against the plaintiff in error for the sum of $701.29 damages, alleged to have been occasioned by changing the grade of the street adjoining his lot, and working the same in conformity therewith, by which a valuable store building was rendered less accessible, and somewhat less valuable for business purposes than before.

There was no complaint of any direct encroachment upon the lot or property in question, but the damages were the result, entirely, of lowering the street some three or four feet below what it was when the building was erected.

The answer of the city denied that the grade of the street was changed, but alleged substantially, that up to the time of the acts complained of no grade for this street had ever been established, and that this was but the lawful exercise of a power conferred upon the city council for. which the corporation was not liable.

According to the theory of the case then, as made by the petition, even conceding the city would be liable for damages caused by changing a grade once established, in order to have justified a recovery, it was necessary to show the existence of a grade at the time the improvements were put upon the lots. On this point, however, there is a total want of legal proof. It is true that certain loose expressions made from time to time by certain officers of the city government would seem to indicate that they supposed such a grade had been made, but these cannot be dignified by the name of evidence; they are hearsay merely, by which the city cannot be bound.

To establish the existence of a grade for a street in a city, the records and files pertaining thereto should be produced. Unless these be shown to be either lost or destroyed, secondary evidence will not be received. This was a vital point in the plaintiff’s case, and the failure of proof to sustain it requires a reversal of the judgment.

As to the liability of a municipal corporation for injuries to adjoining property caused by the grading of its streets, while there is some conflict in the authorities, the decided preponderance seems to be in favor of the rule that, when the corporation, in the reasonable exercise of an authority given by its charter, establishes a grade for its streets, and works them in accordance therewith, there being no provision in the charter or law for the payment of damages, an action will not lie: In such case the damages resulting to an adjoining proprietor belong to that numerous class of injuries to which the citizen is necessarily subjected for the public good, and fall within the operation of the rule da/mnum absque imjwria.

The judgment of the district court must be reversed, and a new trial awarded.

Reversed and remanded.