87 Neb. 626 | Neb. | 1910
In rendering the judgment from which this appeal is taken, the district court held that the city of Lincoln is liable to plaintiff as the owner of real estate damaged by the construction of a viaduct on Tenth street over intersecting railroad tracks owned by three railway systems— the Chicago, Burlington & Quincy Railway Company, the Chicago & Northwestern Railway Company and the Missouri Pacific Railway Company. The record discloses these facts: The electors of the city decided by ballot at an election duly called that the viaduct was necessary for the public safety. Aftenvard by ordinance the raihvay companies were ordered to construct the viaduct and approaches, but refused to do so. To coerce them into the performance of that duty the city applied to the district court for a writ of mandamus. While the action was pending, the parties thereto entered into a stipulation binding the city to appraise the damages to abutting property and obligating the railway companies to begin the work of construction upon the city’s obtaining an award of appraisers. With a view to carrying out the terms of the agreement thus made, the city passed an ordinance pro
The damages sustained by plaintiff were fixed by the appraisers at $500, and from the appraisement in that sum it appealed to the district court. Though the claim on its face purports to present only a .question as to the amount of plaintiff’s damages,'plaintiff and the city, on appeal, stipulated the sum to be $500, and submitted to the district court the question of the city’s liability for the payment thereof. The city was held liable, and judgment was rendered against it for $500. It is from this judgment that the city has appealed to this court.
The city now argues that, on the undisputed facts disclosed by the record, both the common law and the city charter impose upon the railroad companies liability for the damages to plaintiff’s property; that the city has not assumed any part of such liability either by contract or ordinance or by participation in the proceedings to appraise the damages. Plaintiff controverts these proposi
For failure to bring in necessary parties in compliance with the directions of this statute, the judgment is reversed and the cause remanded for further proceedings.
Reversed.