63 Neb. 26 | Neb. | 1901
In 1892 the city council of Hastings, pursuant to a petition purporting to be signed by the owners of a majority in front-feet of the property abutting upon certain streets, created a paving district and, after a proposition had been duly submitted and voted upon and bonds issued for pav-ing the intersections, proceeded in November, 1894, to as
Most 6f the questions raised have been passed on heretofore in the many cases of this character which have been brought to this court, and we have only to apply the principles therein settled to the circumstances of this particular controversy. The one point not'previously passed on in this connection, or requiring independent consideration, arises upon defendants’ plea of the statute of limitations. The assessment was levied on November 9, 1894, and, under the terms of the statute became, if valid, a lien from and after that date. Suit was begun on November 14, 1898. It is argued that plaintiffs’ cause of action accrued when the assessment was levied and the cloud created, and that, as the four years limited by the Code for commencing actions not otherwise provided, for had elapsed, the action is not maintainable. In Eayers v. Nason, 54 Nebr., 143, the application of the statute of limitations to suits to quiet title was considered, and the court said: “If a defendant is in the adverse possession of a plaintiff’s real estate, claiming title thereto, plaintiff’s cause of action accrues when such adverse possession begins. If the defendant be out of possession, asserting title or claim to the real estate, the cause of action accrues wrhen such claim or title is asserted. If the conveyance, instrument, or thing on which the assertion of title is based is of record, perhaps the cause of action accrues when such conveyance, instrument or thing is placed of record.” If such be a. complete statement of the rule, it may well be argued that plaintiff’s cause of action to remove the cloud accrued when the assessment was levied, became of record and appeared and was asserted as a lien upon the property in the district. But it is. not clear that the language
The contention of defendants that several of the plaintiffs are in no' position to maintain this action because
N There can be no doubt that the assessment was invalid. It is the settled construction of the statutes of this state relating to municipal corporations that the several steps required to be taken in assessing the cost of public improvements against property benefited must be pursued strictly. ''Casey v. County of Burt, 59 Nebr., 624; Leavitt v. Bell, 55 Nebr., 57; Horbach v. City of Omaha, 54 Nebr., 83; Von Steen v. City of Beatrice, 36 Nebr., 421. Several grave defects and omissions in the proceedings leading up to the assessment here in question are charged. But we need not consider them, for the reason that the petition is manifestly insufficient. Property owners whose property will be charged by the establishment of a paving district are entitled to insist that the several petitioners therefor sign in such way as to be fully and legally bound, and no signatures which do not so bind the owners of the property purported to be affected thereby may be counted in passing upon the validity of such a petition. Von Steen v. City of Beatrice, supra. The petition in question was signed by the mayor representing abutting property owned by the city; by the administrator of an estate on its behalf without any authority other than such as might arise from his office; by several husbands representing property owned by their wives; by several individual tenants in common on behalf of the whole tracts so held, without authority from or signatures of the other co-owners; and in one case by an owner purporting to bind more property than he held. These several cases fall clearly within the rules announced in Von Steen v. City of
While this cause has been under advisement, briefs have been submitted to us by counsel representing other municipalities, asking us to review and overrule Leavitt v. Bell, 55 Nebr., 57, and Von Steen v. Beatrice, 36 Nebr., 421, and to hold that no petition was necessary. Notwithstanding the full consideration of this question in Leavitt v. Bell, we have withheld our opinion for some time in order to examine those briefs and re-examine the questions they present. Having done so, we feel satisfied of the correctness of the former rulings of this court. The whole tendency of.recent legislation in this state has been to give those who are to be assessed with the cost of paving a . voice in the determination of how, when and where the improvement shall be made. The earlier statutory provisions gave plenary powers in that regard to city councils. But more recently the advisability of reposing such powers in bodies of that character has been doubted. In Von Steen v. Beatrice the court held that the several provisions ' of the section of chapter 12a, Compiled Statutes, with respect to paving, were to be construed together, and that, so construed, they required a petition. Irvine, 0., in his dissenting opinion in Leavitt v. Bell, concedes that if these provisions are construed as if drawn as an entirety and at one time, such must be the result. The restatement and amendment took the usual unfortunate form of tacking on a new provision without endeavoring to reconcile it to the original section. But the whole was re-, enacted as one section, and the latter part, as the last expression of the legislative will, must prevail. We think the course of subsequent legislation has shown that this was the result intended, and that the legislative policy is to leave this matter to the property owners affected. '‘Section 97, article 1, chapter 13, Compiled Statutes, provides that no paving shall be done except on petition of abutting
We therefore recommend that the former rulings of this court be adhered to and that the judgment be affirmed.
By the Court: For the reasons set forth in the foregoing opinion, the judgment of the district court is
Affirmed.