Second Congregational Church Society v. City of Omaha

Norval, J. In 1887 plaintiff in error was the owner of lot 2 in Jacob’s addition to the city of Omaha, also parts of lots 35 and 36 in Clark’s addition to said city. All of the aforementioned lots front upon St. Mary’s avenue, between Twenty-sixth and Twenty-seventh streets. In the year above stated the city council of Omaha passed an ordinance changing the grade of Twenty-seventh street from St. Mary’s avenue to Leavenworth street, and that of St. Mary’s avenue between Twenty-sixth and Twenty-seventh streets. Appraisers were appointed, who assessed plaintiff’s damages at §100, and from the award it took an appeal to the district court. Upon the trial the plaintiff offered in evidence the ordinance changing the grade, the appointment of appraisers, their oath and report, and the [104] proceedings of the city council confirming the appraisers’' report, all of which were excluded by the court. Likewise all testimony offered by the plaintiff to support its claim, of damages was excluded, and under the direction of the court the jury returned a verdict for the city. It is contended by counsel for defendant in error that the proceedings taken by the city in the assessment' of damages were so defective as to render .the award a nullity, therefore no appeal would lie therefrom, and, as we understand it, this was the view taken by the trial court. -The-point is made that no legal oath was taken by the appraisers. Each made oath “that he is a resident and freeholder in the city of Omaha in said county, and is not interested in the taking and appropriation of the property, and land declared by ordinance No. 82 necessary to be appropriated for the use of said city for changing the grade of Twenty-seventh street from St. Mary’s avenue to Leavenworth street, and having been appointed by the mayor*, with the approval of the council of said city, as one of the disinterested freeholders of said city to assess the damage-to the owners of the property, respectively, to be taken by such appropriation, taking into consideration special benefits, if, any, this affiant hereby accepts said appointment, and here makes oath to perform the duties of said appoint-, ment with fidelity and impartiality.” It will be observed that the appraisers were not sworn, to assess the damages to property abutting on St. Mary is-avenue, occasioned by the changing of the grade of that, street, but to appraise the damages to owners of property appropriated to the use of the city for the changing of the grade of Twenty-seventh street from St. Mary’s avenue to Leavenworth street. Clearly they were not sworn to act upon the property located on St. Mary’s avenue, upon which street plaintiff’s property abuts. In this respect the, oath was insufficient, but the objection could not be urged. in ;the district court on the trial-of the appeal taken from [105] the award of the appraisers. The land-owner waives the defect by appealing, and the city, by changing the grade, and confirming the appraisers’ report, waived its right to object that a valid oath was not taken. (Trester v. M. P. Ry. Co., 33 Neb., 171.) Ordinarily, such an appeal is limited to the mere question of damages. Especially is this true where, as in the case at bar, no pleadings are filed presenting an issue upon matters other than the amount of damages sustained. To us it appears unjust, inequitable, and contrary to every principle of right to permit the city, after it has damaged property by changing the grade of the street upon which it abuts, to urge defects in its proceedings to defeat an appeal taken by the land-owner to recover a fair compensation for the damages sustained. To do so would be to allow the city to take advantage of its own wrong after it had accomplished that which it undertook to do, the change of the street grade. Such a rule courts should not sanction. What has been said disposes of all objections urged by the city against the regularity of its proceedings. The court shquld have received the testimony tendered by the plaintiff on the question of damages.’ The judgment is reverse^ and the cause remanded for further proceedings. Reversed and remanded. The other judges concur.