23 Neb. 325 | Neb. | 1888
This is an action to recover damages sustained by the ^plaintiff by reason of grading the streets bordering on her property in the city of Omaha. She alleges in her petition, “ That she is, and has been at the times herein men
It is then alleged that in 1884 ordinances were passed by the proper authorities of Omaha, fixing the grades of the streets named and providing for grading the same. “ That previous to said grade complained of, the premises of the plaintiff were accessible by a gradual ascent from about 23d street, and were easily approached from either 24th street on the east or California street on the north, and the ground adjacent thereto was almost level; that the said grading of California street along the front of plaintiff’s premises made a cut of about eighteen feet at the north-east corner of said lots, extending west the same depth along the whole front of said lots; that thereby it became necessary to cut and grade Twenty-fourth street to the level of California street at the place of their intersection, and the said grade and cut was made, and said cut so made on Twenty-fourth street extended southward the
The petition contains an appropriate prayer for relief. The city, in its answer, in effect denies the damage to plaintiff’s property, and pleads special benefits in excess of the damage in the amount of two thousand dollars, for which it prays judgment. There is a reply to the answer, which need not be noticed. On the trial of the cause the jury returned a verdict in favor pf the defendant. A motion for a new trial was thereupon made by the plaintiff, upon the grounds, first, that the evidence was. not sufficient to sustain the verdict; second, errors of law occurring at the trial; third, error in giving certain instructions named. The motion was overruled, and judgment entez-ed on the verdict dismissing the action.
The testimony shows that, before the gz'ading, the land immediately around the house in question was nearly level, gradually sloping towaz’ds the south and east; that in consequence of the grading the house was left at an avez'age height of more than fourteen feet above the level of the street; that izi that condition it is alznost inaccessible except by means of stazz’s; that to bring the lots to a proper grade above the streets named would z'equire the z’emoval of more than tlziz’teen thousand cubic yaz’ds of earth, to remove which would cost, as shown by the testimony, from twenty-five hundred to thirty-five hundz'ed dollars; that the house would sustain considerable damage by lowering it to the grade, which one of the witnesses fixes at a very considerable sum, which need not be named here. There is also proof as to daznages from the destruction of trees ozz the lots in question, fixed by one of the witziesses at the sum of three huzzdred azid sixty dollars. The aggregate of the damages, as proved, amount to a very large sum, and greatly in excess of the special benefits sworn to by the witnesses. A number of real estate agents were called by
Q,. Do you know the grade that was made on California street in 1884?
A. I do not remember the time it was made, but I know how it is.
Q,. You have bought and sold real estate and dealt considerably in it for the last few years?
A. Yes, sir.
Q,. And are you familiar with the prices of real estate ?
A. Yes, sir.
Q. State to the jury whether or not, in your opinion, the grading of California street and 24th street in front of this Schaller property was a benefit to -it or not, considered as a residence location?
A. I would consider the grade of any street benefited to a certain extent, unless it was over graded, and there I considered that they done more than- was necessary; I would have considered a gra’de of five or six feet all that was necessary.
Q,. And at the present time what effect do you think that the grade had ?
Q,. Do you consider it an injury to the property?
A. Yes, sir.
Q,. Demoralizing it, what do you mean by that ?
A. An injury.
On cross-examination, he testified:
Q. You think a reasonable grade on a street like that is a benefit?
A. Yes, sir.
Q,. Especial benefit to the property ?
A. Yes, sir.
Q,. But an unreasonable grade you think to be an injury ?
A. Yes, sir.
Q,. And you consider the grading of the streets as they are now graded an unreasonable grade?
A. In some cases.
Q. It is upon the theory that it is an unreasonable grade that you consider it demoralizing, or in other words injured ?
A. Yes, sir.
Q,. You consider the grading or cutting of fifteen or sixteen feet would be an unreasonable grade ?
A. Yes, sir, in that case.
Q,. Are you a civil engineer?
A. No, sir.
Q,. You are a real estate agent?
A. Yes, sir.
Q. How long have you been such?
A. About three or four years.
Q,. Herein Omaha?
A. Yes, sir.
There is no denial of the testimony of these witnesses that the cut was too deep for the property to derive any benefit from the grading.
The question depends upon the construction to be given to section 21, article I. of the constitution, which is as follows : “ The property of no person shall be taken or damaged-for public use without just compensation therefor.” This section, without the words “ or damaged,” is a verbatim copy of section 13, article I. of the constitution of 1867. ' The history of the amendment is as follows: In the constitutional convention of 1875, the committee on the bill of rights reported section 21 as it existed in the constitution of 1867. This section was amended in open convention, by adding the words “ or damaged,” and in that' form it was adopted by the people of the state. Section 21, therefore, provides that the property of no person shall be damaged for public use without just compensation therefor. It is conceded that if property is taken for public use, general benefits cannot be considered, but it is claimed that a different rule applies to property damaged, and a number of cases were cited tending to sustain that view. All of these cases, however, while valuable aids in considering the question, are not to be considered as binding upon us in construing our own constitution; and while we entertain a high opinion for the supreme court of Illinois, and courts of the other states named, we cannot allow their decisions to control against the manifest meaning of the constitutional provision. A provision of this kind has existed in no state for more than seventeen years. It is not a matter of surprise, therefore, that the courts are not in
In Wagner v. Gage County, 3 Neb., 237, this court, in •construing the words, “just compensation for land taken,” •held that general benefits could not be considered, while ■special benefits might be. That decision was rendered fourteen years ago, and has become a rule of practice in this state, and has never, so far as the writer is advised, been questioned. The words, “just compensation for property damaged,” seems to be just as broad as where the property is taken, that is, that the benefits, which the owner •of the land in common with the rest of the inhabitants of the vicinity shares, shall not be taken into consideration in estimating the benefits. A different rule injects words into the constitution which are not found there, and puts a forced construction upon its language. It is claimed on behalf of the city, that, if the property will sell for as much •after the improvement is made as before, the owner has sustained no damage, although other property in the vicinity may have been greatly enhanced in value thereby.. Such a rule, however, takes into account public benefits, •and thereby casts the burden entirely upon the party alleged to be benefited. Suppose two or more railroads reaching out into the interior of the state were to be built terminating in Omaha, with the right to lay their tracks ■along Earnam street. Such roads, when constructed, no •doubt would greatly enhance the value of property in the city of Omaha, while by reason of destroying Farnam street as a public thoroughfare they would prevent the rise •of property on that street in proportion to other portions of the city, yet if the argument of the defendant’s attorney is sound, if real estate on Farnam street did not depreciate in Value by reason of its occupancy by the railways, the owners could recover nothing, although property in other por
The words, “ or damaged,” in the constitution, being remedial in their nature, are to be liberally construed in favor of justice. The alleged benefits in this class, of cases, are largely speculative, and not founded on actual sales ; that is, persons who claim to possess knowledge of the value of the property, testify that in their opinion the property is worth as much after as before the grading, and in this case two of the witnesses testify that when the grade is fixed they consider the property worth considerably more than before the establishment of the grade. Streets are graded for the benefit of the public, and any benefit derived by the lot owner is in the nature of an incident, and is not the object of grading the street.
If grades were intended solely for the benefit of the lot owners they would be adapted to the lots along which they were established, and it would rarely be necessary to. make cuts as great as shown by the testimony in this case. The rights of the lot owners, however, generally are a secondary consideration, the question being what grade is best adapted to promote the public use. The'work therefore, being- for public use,, the burden- must be borne by the one benefited — the public, although special benefits to any lot owner- may be set off as against damages sustained by him from the grading. In awarding just compensation for property damaged for public use, therefore, general benefits to the public- at large from the proposed improvements cannot be considered, while special benefits may be set off as against the- damages.
In the case under consideration the- highest estimate of the special benefits to the plaintiff's property did not exceed the sum of two thousand dollars, while the damages are proved, to be greatly in excess of that sum. The verdict, therefore,, is. not supported, by the evidence.
Reversed and remanded.