Slabaugh v. Omaha Electric Light & Power Co.

128 N.W. 505, 87 Neb. 805, 1910 Neb. LEXIS 304

• Court: Nebraska Supreme Court
• Decided: November 16, 1910
• Docket: No. 16,067
• Status: Published

Opinions

Root, J.

This is an action for damages caused, as alleged by the defendant, in trimming shade trees in a street and contiguous to the plaintiff’s lot. The plaintiff prevailed, and the defendant appeals.

There is no conflict in the evidence. In 1884 the city council of the city of Omaha granted to the defendant’s assignor a franchise to transact a general electric light business in said city, and granted said assignor a right of way upon and over the streets, alleys and public grounds in said city for the purpose of erecting and maintaining the poles, wires and appurtenances necessary for the transaction of said business. In 1895 the plaintiff purchased a lot in said city. At that time two maple trees were growing between the sidewalk and the curb line in that part of Fortieth street contiguous to said real estate. About 1902 the defendant erected poles and. attached wires thereto in the line of said trees in said street. At that time the wires were suspended above the trees. Subsequently limbs of the trees grew up to, among and above said wires and interfered therewith. In 1908 the building inspector of said city gave the defendant permission to trim the trees, and, without the plaintiff’s knowledge or consent, its servants cut off the limbs within the center of the head of the trees some 15 feet below the tops thereof, thereby damaging them and depreciating the value of the plaintiff’s property. The plaintiff charges that the defendant acted maliciously, unlawfully and wilfully in trimming her trees. The court instructed'the jury that, if they found from a preponderance of the evidence that the defendant by trimming said trees damaged the plaintiff’s lot, they should And in her favor.

The defendant does not argue that the damages are excessive, but its counsel contend that the evidence does not establish that the defendant acted maliciously or unlawfully, nor prove that the plaintiff’s trees were trimmed more severely than was necessary to enable the defendant to safely and successfully convey currents of electricity over its wires, and for these reasons the defendant is not liable for such damages as the plaintiff may have suffered. The defendant admits that the plaintiffs grantor had the right to plant, and she had the authority to maintain, the trees in question, but that the defendant also had authority to construct and maintain its poles and wires in said streets, and that the individual’s right to maintain the trees is at all times subordinate to a superior authority on the part of the defendant to trim or remove them whenever such action might become necessary in the construction or maintenance of its electric light plant. It is further argued that, since the defendant’s right to use the street was granted in 1884, the plaintiff’s cause of, action accrued at that date and the statute of limitations bars a recovery in the instant case.

1. It may be conceded that the proof fails to establish that the defendant’s servants acted maliciously in trimming the plaintiff’s trees, and yet there is sufficient evidence to support the verdict. The allegations with respect to malice and unlawful acts were and are immaterial; they could have been stricken from the petition, and were properly ignored by the court in its charge to the jury. The city of Omaha holds title to its streets and alleys in trust for the'benefit of the public. Jaynes v. Omaha Street R. Co., 53 Neb. 631. The city council had authority to grant the defendant’s assignor a right of way over the streets and alleys in the city for the construction and maintenance of the poles and wires in question, and the use of those streets for that purpose is a public use. City of Plattsmouth v. Nebraska Telephone Co., 80 Neb. 460. lithe defendant had the right under its franchise to trim the plaintiff’s trees, but in the exercise of that authority it damaged her property, it should respond in damages under section 21, art. I of the constitution, which reads: “The property of no person shall be taken or damaged for public use without just compensation therefor.” Harmon v. City of Omaha, 17 Neb. 548; City of Plattsmouth v. Boeok, 32 Neb. 297; City of Omaha v. Flood, 57 Neb. 124; Jaynes v. Omaha Street R. Co., 53 Neb. 631; Bronson v. Albion Telephone Co. 67 Neb. 111; Brown v. Asheville Electric Co., 138 N. Car. 533, 69 L. R. A. 631; State v. Graeme, 130 Mo. App. 138; Daily v. State, 51 Ohio St. 348.

The defendant’s counsel argue with great force and learning that the owner of plaintiff’s lot at the time the trees were planted was charged with notice that in the proper use of said street for a public purpose it might become necessary to trim or even remove the trees, and her property rights therein are subject to the greater right of the public, and that the defendant stands in the shoes of the public with respect to the acts referred to in the petition. There is no proof in the record that the city council of the city of Omaha ever enacted an ordinance for the purpose of controlling the planting or maintenance of shade trees upon the streets of said city, or providing that such trees might be trimmed or removed whenever they interfered with the public service, and without compensation to the lot owner, or that said trees were planted subject to any ordinance other than one directing that limbs of shade trees shall not be permitted to grow within a certain distance of the sidewalks in said city, nor is there any proof that the plaintiff in maintaining her trees in the condition in which they existed before defendant trimmed them violated any ordinance of the city. Tin1 defendant, therefore, must justify under the terms of its franchise and the constitution of the state. An apj)lication of the fundamental law to the record in this case amply supports the judgment of the district court.

2. To the argument that the plaintiff’s cause of action ■arose in 3884, it is sufficient to say the owner of the plaintiff’s lot could not know at that time that the defendant would erect the poles and string the wires in question, nor could the plaintiff have known when the wires were strung that defendant would years thereafter trim her trees, and thereby damage her property. It was feasible to remove such wires to the alley, and it was possible they would be placed in conduits beneath the surface of the street before the necessity might arise for trimming the trees. The plaintiff’s cause of action arose when her property was damaged, and the statute does not bar that action.

The judgment of the district court is right, and is

Affirmed.