West v. City of Omaha , 48 Neb. 466 ( 1896 )

Harrison, J.

It appears that tbe proper authorities of tbe city of Ornaba, on or about tbe 12tb of September, 1889, in tbe course of a proposed extension of Twenty-second street, appropriated lot 12, in Godfrey’s Addition to Ornaba, on which there was then a dwelling house, a barn, and certain other improvements. The city authorities had caused the property to be appraised in what may be termed condemnation proceedings, in the manner provided by law, and the committee of appraisers made the following report:

“We, the undersigned committee duly appointed by the mayor and confirmed by the city council of Omaha city, and having qualified for the duty as required by ■ law to assess any damages that may arise by appropriating land for the opening of Twenty-second street from E. Y. Smith’s Addition to Charles street, do find the following persons entitled to the amount of money as. placed, to-wit:

* * * ->:• *- * *■

Joseph B. West, for lot 12, Godfrey’s Addition.. $3,720 And all improvements thereon except the bam (the barn to be removed by J. B. West). 1,450'

* # -x- ft -x* # 4f

“Respectfully submitted, with plat signed and attached, also waiver of notification.

“W. J. Kennedy.

“E. M. Stenberg-.

“W. H. Alexander.”

The plaintiff, and other parties, filed an acceptance of the assessment by the committee, which read as follows - “We, the undersigned, whose property has been declared by the city of Omaha necessary to be appropriated for the opening of Twenty-second street south from E. Y.. Smith’s Addition to Charles street, hereby agree to accept the assessment made by W. R. Kennedy, E. Y. Sten-berg, and Alexander, appraisers appointed by the council to make such assessment of damages, as satisfactory-

“J. M. Marston,

“Pres. Board Trustees Seward St. M. IE. Glmrch

“J. B. West,

“Sect. Board of Trustees-

“E. G. Humphrey.

“J. B. West.

“Thos. Meldrum.”

After appraisement bad been made and tbe plaintiff bad abandoned tbe property and tbe improvements tbereon to tbe use of tbe city in making tbe proposed extension of tbe street; be removed tbe bouse to another part of the city, and after placing it on a lot and repairing it, sold it. It appears that be bad consent of one or two members of the city council and city attorney to remove tbe bouse, but it is conceded that this permission was not sufficient and that bis removal of the bouse was without any authority or right. Tbe city, when it paid plaintiff for bis property, retained of tbe amount assessed in bis favor by tbe appraisers the sum of $750, as tbe value of tbe bouse taken by him. Tbe payment was not made until about eighteen months subsequent to the time of tbe appropriation of the property by tbe city, and tbe payment of interest on tbe sum adjudged to be bis damages, for tbe time stated, was refused by tbe city. This action was brought by plaintiff to recover tbe amount be claimed to be due him for the bouse, and also interest on the amount awarded him by tbe appraisers from tbe date bis property was taken by tbe city to tbe time of tbe payment of tbe award. In regard to tbe claim for interest, tbe defense pleaded and urged in behalf of tbe city was that the plaintiff bad, by written instrument filed with it and acted upon, waived tbe right to recover any interest. Tbe law relating to the appropriation of property, as was this by the city, contemplates that when tbe property is taken a tender or payment of tbe damages awarded shall then be made. In order to a compliance with this requirement, after tbe improvement has been decided upon and tbe ap-praisement made, reported, and approved, an assessment must be made and a fund realized therefrom to make the tender or payment. This necessitates some delay in tbe commencement of tbe projected improvement, and so it would have been in this instance, but tbe plaintiff and -others, asking for tbe extension of tbe street, filed with tbe city authorities tbe following petition:

“June 11, 1889.

“To the Honorable the Mayor and Council of the City of Omaha: We, tbe undersigned, owners of the lots below described set opposite our respective names, do hereby petition your honorable body to cause to be opened and extended Twenty-second street from the south line of E. V. Smith’s Addition south to Charles street, said city. In consideration of such action we hereby waive all right and claim to prepayment or tender of damages which may accrue to us by the appropriation of any of our real estate therefor, or otherwise. Our damages to be duly ascertained and paid to us as the fund therefor may accrue from the payment of assessment or special taxes as by law provided, or through the judgment of the courts. Said street to be opened sixty-two (62) feet wide, the width of the lots below described.

“Name. Lot. Block. Addition.

“J. B. West.... 12. Godfrey’s Add.”

The action of the city in respect to the extension of Twenty-second street was in compliance with the above request, and the improvement was made, taxes levied, and when collected the amount was paid.

Conceding that if property is taken by condemnation proceedings before payment or tender of damages is made that the owner would be entitled to interest on the principal sum, his due, from the time of the appropriation of the property to the date of the payment of such sum, the right to collect interest may be waived. The only question urged here is, Did the instrument signed by the plaintiff constitute a waiver of interest, or was the construction that it was such waiver given it by the trial judge a correct one? This must be answered in the affirmative. The instrument, by its ter jus, does not delay the time of payment beyond what it would otherwise have been, but says: “Proceed with the improvement. Take the property now and we will wait for the money until the time elapses necessary for the asSessments and their collection.” Nothing became dne the parties under it until such time as the funds were collected. No enforceable claim existed in their favor until the time stated in the instrument. The right to tender or payment at the time of the appropriation of the property was waived in direct terms. If it. be said that this was a forbearance of payment of the awards for the necessary length of time', it may be answered that it was a forbearance or delay, not at the instance of the debtor; was one which, of the debtor’s own volition, would not have been created or existed, but was of the creation of the creditors, was at their instance and request. The trial judge did not err in holding that the plaintiff was not entitled to collect interest.

It is urged that the judge before whom the cause was tried in the district court erred in findiug that the value of the house removed from the premises by the plaintiff was the sum of $750, and that the city authorities did right in retaining of the award of the appraisers to plaintiff the sum of $750. The plaintiff had no right to the house. It did not belong to him, but to the city, and he had no permission to remove it ^ and treat it as his own, and by his so doing the city became entitled to recover of him its fair value, what it would sell for under the existing conditions, standing on a lot from which the buyer must remove it, and if no more than this had been retained from the amount of the award, it is conceded that the judgment in this case may be affirmed as right. The highest salable value, all the conditions being considered and entering into the estimation placed upon the house by any witness, was $600. This being true, there was no sufficient evidence to warrant or sustain the finding of a value of $750, and the judgment for defendant, predicated in part on such finding, was wrong. It follows that the judgment must be reversed and the cause remanded.

Beverskd and remanded.