January, 1920, the defendant had constructed cement sidewalks along said building and parallel with said Dodge and Eighteenth HANLEY v. FIREPROOF BLDG. CO. (No. 21849.) (Supreme Court of Nebraska. Jan. 26, 1922.) streets; that the sidewalk adjoining this (Syllabus by the Court.) 763(1)-Must 1. Municipal corporations apartment house on Dodge street slopes sharply to the east; that on or about said 8th day of January, 1920, the plaintiff was a tenant of defendant and was living in said apartment; that prior to said day snow and ice had fallen and accumulated on this sidewalk; that small boys used said sidewalk and the ice and snow on the same for coast The law of this state imposes upon the various municipal corporations thereof the duty of at all times keeping their streets and sidewalks in a reasonably safe condition for traveling; that such use made said sidewalk danby the public. 2. Municipal corporations 808(1)-Abutting owner is under no common-law duty to keep adjacent sidewalks safe. Under the common law no duty devolved upon an abutting owner to keep the sidewalks adjacent to his property in a safe condition. 3. Municipal corporations 808 (7)-Property owners' breach of ordinance requiring keeping of sidwalks safe is remediable only by city. Where the provisions of an ordinance impose upon property owners the performance of a part of the duty of the municipality to the public and are for the benefit of the municipality as an organized government, and not for the benefit of the individuals comprising the public, a breach of such ordinance is remediable only at the instance of the municipal government, and no right of action accrues to an individual citizen especially injured thereby. District Court, Douglas gerous to pedestrians, all of which was known to defendant; that the defendant negligently and carelessly failed to remove said snow and ice as required by law; that on or about said 8th day of January, 1920, plaintiff left said apartment and went upon said sidewalk, and while on said sidewalk was violently run into and against by a sled used by a small boy coasting down said sidewalk, and she was thrown to the ground and injured. Then follow allegations as to the extent of plaintiff's injuries and damage, and prayer for judgment. In view of the disposition of the case by the trial judge it will be unnecessary to fully set out the allegations of defendant's anThe defendant says, among other swer. things, that the plaintiff cannot maintain an action against it for the reason that her cause of action, if any, is against the city of Omaha, and that the amended petition does not state a cause of action and demurs to each and every allegation therein contained. Trial was had to a jury November 20, 1920. At the close of plaintiff's evidence defendant moved the court to instruct a verdict for the The cause defendant, and this was done. was dismissed and judgment rendered for A motion for a new trial was overruled, and plaintiff brings the cause here on appeal. Action by Roxina Cullen Hanley against Cause the Fireproof Building Company. dismissed, and judgment rendered for the defendant. Motion for new trial overruled, and the plaintiff appeals. Affirmed. Crofoot, Vinsonhaler, Fraser, Connolly & defendant. Stryker, of Omaha, for appellant. Kennedy, Holland, De Lacy & McLaughlin, of Omaha, for appellee. Heard before LETTON, DEAN and ALDRICH, JJ., and DILWORTH and E. P. CLEMENTS, District Judges. This An examination of the evidence introduced by the plaintiff discloses that it fairly substantiates the allegations of her petition. It follows that the correctness of the course taken by the trial judge depends upon whether or not the petition states a cause of action. E. P. CLEMENTS, District Judge. The defendant contends that the action of is an action brought by the appellant against the appellee to recover damages resulting the trial judge was correct for two reasons: from personal injury. The plaintiff in her First, because one citizen of Omaha cannot amended petition alleges in substance that maintain an action against another citizen the defendant owned an apartment house at for injuries received upon the sidewalks of the northwest corner of Eighteenth and the city, and which were occasioned or conDodge streets in the city of Omaha; that tributed to by the failure to remove snow section 17 of Thomas' Revised Ordinances of and ice in compliance with the ordinance of Omaha made it the duty of owners of prop- said city; second, because the petition on its erty to remove such ice and snow as may face discloses that the failure to remove the fall and accumulate upon sidewalks adjacent ice and snow was not the proximate cause and contiguous to their property within six of plaintiff's injury. We shall find it neces hours after the cessation of any storm or sary to consider only the first of these reafall of snow; that prior to the 8th day of sons. (186 N.W.) [1, 2] This precise question has never been, ordinances for the protection of lives and before this court, but the following principles are well established: property and which relate primarily to the duty of those whose conduct they regulate, for the benefit of persons traveling the streets, who have a right to rely upon the observance of these ordinances, and that the "The law of this state devolves upon the various municipal corporations thereof the duty of at all times keeping their streets and sidewalks in a reasonably safe condition for trav-violation of any statutory or valid municipal el by the public, and no municipal corporation, by any act of its own, can devolve this duty on another so as to relieve itself from a liability resulting from its failure to perform such duty." Davis v. City of Omaha, 47 Neb. 836, 66 N. W. 859. See, also, City of Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833, 37 Am. St. Rep. 432; City of Beatrice v. Reid, 41 Neb. 214, 59 N. W. 770. Under the common law no duty devolved upon an abutting owner to keep the sidewalks adjacent to his property in a safe condition for travel. 13 R. C. L. 415, § 341. [3] It is apparent from the foregoing that, if the plaintiff has a cause of action against the defendant by reason of the facts set out in her petition, it is by virtue of some statute, charter provision, or valid ordinance. The plaintiff in effect admits this, and in her petition pleads section 17 of an ordinance of the city of Omaha, which is as follows: "It shall be the duty of the occupant, as well as the duty of the owner, of any lot or land or real estate in the city of Omaha to clear the sidewalks contiguous thereto of all snow and ice within six hours after the cessation of any storm or fall of snow; provided, however, if such storm or fall of snow take place and occur in the nighttime, then and in that case the owner shall have until twelve o'clock noon next following to clear said sidewalks of said snow and ice; said snow and ice shall be removed into the traveled portion of the street and so spread over the surface of the street as not to interfere with public travel thereon, and no portion thereof shall be placed or spread within three feet of the curb line on said street." regulation, established for the benefit of private persons, is of itself sufficient to prove such a breach of duty as will sustain a private action for negligence brought by a person belonging to the protected class, if the other elements of actionable negligence occur. Sluder v. St. Louis Transit Co., supra; Bott v. Pratt, 33 Minn. 323, 23 N. W. 237, 53 Am. St. Rep. 47. /It must be noted, however, that the cases that support this rule carefully differentiate between such ordinances and ordinances where the duties enjoined are due to the municipality or to the public at large. As to this class of ordinances the authorities are almost, if not quite, unanimous that no cause of action arises to an individual against one who neglects to perform the duties enjoined. / Sluder v. St. Louis Transit Co., supra; Bott v. Pratt, supra; Jackson v. Kansas City, Ft. S. & M. R. Co., 157 Mo. 621, 58 S. W. 32, 80 Am. St. Rep. 650; Heeney v. Sprague, 11 R. I. 456, 233 Am. Rep. 502; Philadelphia & R. R. Co. v. Ervin, 89 Pa. St. 71, 33 Am. Rep. 726; Flynn v. Canton Co., 40 Md. 312, 17 Am. Rep. 603; Kirby v. Boylston Market Ass'n, 14 Gray (Mass.) 249, 74 Am. Dec. 682; Hay v. City of Baraboo, 127 Wis. 1, 105 N. W. 654, 3 L. R. A. (N. S.) 84, 115 Am. St. Rep. 977; Selleck v. Tallman, 93 Wis. 246, 67 N. W. 36; Toutloff v. City of Green Bay, 91 Wis. 490, 65 N. W. 168; Moore v. Gadsden, 93 N. Y. 12; Fielders v. North Jersey Street R. Co., 68 N. J. Law, 343, 53 Atl. 404, 54 Atl. 822, 59 L. R. A. 455, 96 Am. St. Rep. 552; City of Rochester v. Campbell, 123 N. Y. 405, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760; City of Hartford v. Talcott, 48 Conn. 525, 40 Am. Rep. 189. In Fielders v. North Jersey Street R. Co., supra, the court says: The plaintiff in her brief has not favored us with a very clear statement of the theory by which she claims a right of action between individuals can accrue by virtue of this ordinance, and we confess that we have been "We find running through the adjudicated unable to deduce this theory from the argu-cases a rule of construction almost universally ment. It has been held in some jurisdic-adopted, that where the provisions of an orditions, and has been earnestly argued by able nance are intended not for the benefit or projurists, that in a state with a Constitution tection of individuals comprising the public, like ours the Legislature cannot constitu- but for the benefit of the municipality as an tionally delegate to a city power to enact a organized government, and more particularly law that would create a right of civil action if they impose upon property owners the performance of a part of the duty of the municibetween citizens inter se. The best exposipality to the public, a legislative intent is intion of this doctrine is found in the dissent-dicated that a breach of such ordinance shall ing opinion of Judge Marshall in the case of be remediable only at the instance of the muSluder v. St. Louis Transit Co., 189 Mo. 107, nicipal government, or by enforcement of the 88 S. W. 648, 5 L. R. A. (N. S.) 186. In this penalty prescribed therein; and that there shall opinion Judge Marshall has collected the be no right of action to an individual citizen consequence of such holdings of the states that have adopted this especially injured in breach." rule. The weight of authority seems to be, however, that municipalities by virtue of their police powers have authority to pass It remains for us to determine to which class of ordinances the one in question be Both the appellant and the appellee have devoted the larger part of their briefs to the question of "proximate cause." They have ably and exhaustively argued this question and have cited many cases to support their views, but as we have found that appellant has no cause of action against appellee for the injuries complained of, and that her action, if any, must lie against the city of Omaha, it is not necessary at this time to determine what was the proximate cause of the injury. longs. Was it passed by the city of Omaha [the ice and snow, then he would owe her no to provide for the safety and protect the duty to prevent the creation of an "attrac lives of persons traveling the streets, or was tive nuisance" by the accumulation of ice it passed by such city for the purpose of im- and snow, and, owing no duty to her, he posing upon property owners a part of the cannot be made liable to her for the failure duty of the municipality to the public for the to perform a duty he owed to the munici benefit, not primarily of the individuals com- pality. prising the public, but of the municipality itself. This question is easily answered. Keeping in mind that the fee of the streets and sidewalks is in the municipality, that the duty of keeping such streets and sidewalks in safe condition for travel rests priImarily upon the municipality, that the accumulation of ice and snow on the sidewalks, while an inconvenience, is not necessarily a menace to the safety or life of pedestrians, that its removal from the miles of sidewalks usually found in a city is impracticable and almost impossible by ordinary governmental agencies, it seems clear that the duty of the lot owners to remove the snow and ice is imposed by the city as a means of carrying out its obligation to keep the sidewalks in condition for travel, and is owed to the FUTSCHER et al. v. CITY OF RULO et al. general public in its corporate capacity, and (No. 22371.) The judgment of the trial court is affirmed. not to the individuals composing such public. (Supreme Court of Nebraska. Jan. 26, 1922.) This view is amply sustained by the authorities. In Fielders v. North Jersey Street (Syllabus by the Court.) R. Co., supra, the court, immediately follow-. Municipal corporations ing the quotation set out above, say: "The most conspicuous cases of this sort are those that deny liability to private suit for violation of the duty imposed by ordinance upon abutting property owners to maintain sidewalk pavements, or to clean ice and snow from the walks"-citing Moore v. Gadsden, 93 N. Y. 12; City of Rochester v. Campbell, 123 N. Y. 405, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760; Kirby v. Boylston Market Ass'n, 14 Gray (Mass.) 249, 74 Am. Dec. 682; City of Hartford v. Talcott, 48 Conn. 525, 40 Am. Rep. 189; Flynn v. Canton Co., 40 Md. 312, 17 Am. Rep. 603; and Taylor v. Lake Shore & M. S. R. Co., 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457. In Jackson v. Kansas City, Ft. S. & M. R. Co., supra, many other cases holding the same rule are collected and reviewed. The appellant has cited a number of cases to the effect that the landlord owes a duty to a tenant to keep walks and approaches to a building, constructed for the use of many tenants, in a safe condition. An examination of these cases shows that the walks and approaches involved were upon the private property of the landlord. They are there fore not in point and of no assistance in this case. 406 (1) - Doubt as to extent of power to construct local improvements must be resolved against the city. The power delegated to a city to construct local improvements and levy special assessments for the payment thereof is to be strictly construed against the city, and every reasonable doubt as to the extent or limitation of such power is resolved against the city. 2. Municipal corporations 408(1)—Doubt as to limitation of expenditures for waterworks must be resolved against the city. Held, that section 5119, Rev. St. 1913, granting power to a city of the second class to make expenditures in the acquisition of a waterworks system, by reason of the peculiar terms of the statute and by reason of the apparent underlying spirit of the act, leaves uncertain the matter of limitation of expenditures to be paid by levy of special assessments, and that such doubt is resolved against the city and in favor of the taxpayer. 3. Municipal corporations 956 (2)-Secondclass city may be enjoined by taxpayers from procuring waterworks at a cost of more than 20 per cent. of taxable property. Where, under such statute, substantially all the property in the city has been included in one taxing district under a plan to construct a standpipe and watermains and hydrants, and The appellant contends that the accumu- pay for the same through special assessments, lation of ice and snow on the sidewalk in at such cost as to bring the expenditures for the entire water system beyond an amount question constituted an "attractive nuisance," and he has cited authorities to this in the city, held, that the city, in so doing, exequal to 20 per cent. of the taxable property effect. We do not see how this changes the ceeded the lawful limitation of taxation fixed situation. If, as we have found, the defend-by the statute, and that its action may be enant owed no duty to the plaintiff to remove joined at the instance of the taxpayers. (186 N.W.) 4. Constitutional law 290(1)-Eminent do- Special assessments may equal, but must not exceed, the benefit to the property taxed. The excess in the cost of a local improvement beyond the actual benefits which the property assessed receives cannot be charged against that property without taking from the owner a portion of his property without due process of law and without just compensation. Appeal from District Court, Richardson County; Raper, Judge. Action by John Futscher and others against the City of Rulo and others, in which the trial court granted a permanent injunction, and the defendants appeal. Affirmed. John Wiltse, of Falls City, for appellants. F. A. Hebenstreit, of Omaha, and J. E. Leyda, of Falls City, for appellees. Heard before MORRISSEY, C. J., AL DRICH and FLANSBURG, JJ., and HOSTETLER and MORNING, District Judges. FLANSBURG, J. This was an action to enjoin the city of Rulo from entering into a contract for the purchase and installation of water mains, fire hydrants and a standpipe, and from levying the cost thereof as a special assessment against the property in the district claimed to be especially benefited by such improvement. The trial court granted a permanent injunction, and the defendant has appealed. The defendant city of Rulo is a city of the second class, and its authority to act in the matter involved is based upon certain provisions of section 5119, Rev. St. 1913. This section of the statute was amended in 1917 (Laws 1917, c. 103) and also in 1919, at the latter time by three separate and distinct acts, bearing no reference to one another (Laws 1919, cc. 46, 48, 52). It has been decided that chapter 46, Laws 1919, has superseded the other amendatory acts and is now the statute which is in effect. Morgan v. City of Falls City, 103 Neb. 795. 174 N. W. 421. of construction of portions of the plant by special assessment to property benefited; the matter of holding elections by the voters to authorize the issuance of bonds; the matter of the extraterritorial power of the city to do certain acts incidental to the establishment and operation of a water system; the matter of fixing rates and charges for the use of water; the matter of collecting and applying all income from rents and profits arising from the operation of such plants; and the matter of providing a water commissioner, defining his duties and salary, and fixing the method of his appointment and removal. The provisions particularly involved here give the city the power by ordinance "to provide for the purchase of steam engines or fire-extinguishing apparatus and for a supply of water for the purpose of fire protection and public use and for the use of the inhabitants of such cities and villages by the purchase, erection or construction of a system of waterworks, water mains or extension of any system of waterworks now or hereafter established or situated in whole or in part within such city or village," and, when authorized by a vote of the electors, to "borrow money or issue bonds for the purpose not exceeding twenty per cent. of the assessed value of the taxable property within said city or village according to the last preceding assessment thereof, for the purchase of steam engines or fire-extinguishing apparatus, and for the purchase, erection or construction and maintenance of such waterworks, mains, portion or extension of any system of waterworks or water supply," and to "levy and collect a general tax in the same manner as other municipal taxes may be levied and collected, to an amount sufficient to pay the interest and principal of said bonds heretofore or hereafter issued as the same mature, on all the property within such city or village as shown and valued upon the assessment rolls," and further provides that "The expense of erecting, locating and constructing reservoir and hydrants for the purpose of fire protection and the expense of constructing and laying water mains, pipes or such parts thereof as may be just and lawful, may be assessed upon and collected from the property The section referred to covers several and real estate especially benefited thereby, if pages of the statute, and there are embodied any, in such manner as may be provided for the therein, in an incoherent and strangely dis- making of special assessments for other public arranged fashion, matters having to do with improvements in such cities, towns and vilthe taking over and control of private water-lages." works systems; the construction and acquisition of waterworks by the city, both for fire protection and for the use of water consumers; the publication of notices to bidders and the letting of contracts; the matter of borrowing money and issuing bonds and of meeting their payment through a general tax; the matter of charging the cost And by section 5120, it is further provided that Such cities "owning their own system of waterworks are hereby authorized and empowered to borrow money or issue bonds, not exceeding five per centum of the assessed value of the taxable property within said city or incorporated village according to the last preceding For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes assessment in addition to the amount of indebt- * * including the plant and the mains, and pay for the same by general taxation, still the city has the right to build part of the plant and pay for the same by general taxation to the full limit of expenditures mentioned, and may then supplement the plant by proViding a reservoir, mains and hydrants, to be paid for by special assessment, without regard to any limit of expenditure, and even though the tax should be confiscatory. The pumps, standpipe, filter plants and A special election was held in the city of station are, in their nature, improvements Rulo, and by vote of the electors the city was of a general public character, conferring a authorized to expend not to exceed $13,000 like benefit over the city generally, and are for the purpose of constructing a water sys- only to a small degree, except, perhaps untem, exclusive of water mains, hydrants, and der special circumstances, improvements of a standpipe. The assessed valuation of all a local character which would confer special the property in the city of Rulo was ap- benefits upon any particular property in proximately $67,000, and the $13,000 author- the city. The Legislature could, had it seen ized expenditure was, therefore, nearly 20 fit, have provided that those particular porper cent. of such total assessed value. Up- tions of the water system should be conon receiving this authority from the electors, structed and paid for by general taxation, the city council proceeded to let a contract and could have provided a limit to the exfor the construction of pumps, buildings, penditures to be made for that purpose; and filter plants and other water plant appurte- the Legislature could have provided that nances, the cost of which, by the contract, the water mains and such portions of the was to be $11,995. This left the matter plant, which are constructed throughout the of a standpipe and water mains entirely city and are strictly in the nature of local unprovided for. The city council, then, by improvements, conferring special benefits upunanimous vote, in order to provide for on one property or another, as might happen those portions which had been omitted, and to be adjacent to such improvement, should which were essential to a complete water-be paid for by special assessments, without works system, passed a resolution describing limitation as to the amount of such special the entire city of Rulo as a special assess- assessments, except that they should not ment district, setting forth a plan for the exceed in amount the value of the benefits erection of a standpipe and the construc- conferred upon the property taxed. The protion of water mains and hydrants through-visions of the statute do not so segregate out the city, the estimated cost of all of those two classes of property improvements. which was $30,033.86, and which cost was The provision for raising funds to provide proposed to be assessed against the prop- a water system by general taxation is erty in the city, according to benefits. By not confined to the purchase and establishthe two methods, then, of general taxation ment of such portions of the plant only as and special assessment, the city proposed are of general public benefit, but is so comto expend some $42,000 for the construction prehensive as to allow the water mains and of a water plant, mains and reservoirs, the entire water system to be constructed which is approximately 60 per cent. of the and paid for by general taxation. On the total assessed value of the taxable property in the city, when, if the city had pursued other hand, the provision for special assessthe one method alone of paying for the iden-ments is not confined to raising funds for the construction of those portions of the tical properties by general taxation, its expenditures would unquestionably have been plant only-such as mains, pipes and hylimited to 20 per cent. of such assessed drants-which are in their nature strictly local improvements, and which confer spevalue. [3] By the provisions of the statute re- cial benefits upon those particular properferred to the city is given authority to con- ties in the immediate vicinity of those imstruct an entire water system, including provements, but the provision for special pumps, reservoir, and mains, and to pay assessments also covers the construction of for the same by general taxation. It is a reservoir which, like the pumping plant, limited in that authority to the extent that is under ordinary circumstances of general it may issue bonds to the amount of 20 public benefit to all property in the city, per cent. of the taxable property in the rather than of special benefit to certain The two methods, city, and provide for the payment of these particular properties. bonds through the assessment of a general then, of providing the water system, either tax. Counsel for the defendant contends by general tax or by special assessment, that, though the city would be limited in are not divided by the statute so that those its expenditures, should it undertake to portions of the plant, which are of a general proceed to establish an entire water system, public nature, shall be borne by general tax |