Carlson v. City of South Omaha, No. 16,901

No. 16,901 | Neb. | Apr 20, 1912

Reese, O. J.

This is an action to cancel special assessments levied to cover the cost of paving Missouri avenue in the city of South Omaha. The cause was tried to the court and resulted in a finding and judgment in favor of the defendants. Plaintiffs appeal.

The abstract is quite imperfect and does not comply with any rule of the court, nor with the statute. It is : provided in- section 675/ of the code, that the appellant shall prepare a printed abstract of the transcript of the record and bill of exceptions in which the substance of the transcript and bill of exceptions only shall be stated, and that the abstract, when filed, shall be presumed to contain the whole record, unless the correctness or sufficiency be denied by the opposite party, and in which case the denying party may file a supplemental abstract. No such supplemental abstract has been filed and the presumption provided by the" statute prevails. However, the abstract filed is clearly not complete, as it contains no condensed statement of the contents of the transcript and evidence as required by rule 16 (89 Neb. vii) of this court, but rather the conclusion of counsel as to what is shown, without any reference to the page of the record where the testimony or exhibits may be found, with perhaps two exceptions referring to exhibits. This limits our. inquiry to such propositions, but which are the vital questions involved.

It is said in the abstract that “(he chief grounds relied upon are that ordinance No. 1,393, which defines the boundaries of the district, are vague, indefinite and uncertain; the statute under which the city paved the street without a petition liad been repealed before the final contract was executed; the paving district includes parts of three different and distinct streets, of different widths and different levels, the lots on Missouri avenue being above grade and those on’L street or West Missouri avenue being 60 feet below grade and having- no value; Missouri avenue is 60 feet wide and L street is 80 feet wide,” etc.

As there, is .no abstract of the oral testimony, we are limited to the map or plat of Missouri avenue, which is sufficiently referred to, and by it we find that the avenue extends the whole distance of the paving district from Thirteenth to Twenty-fourth streets, and we can find no reference to L street or West Missouri avenue. It does not appear, therefore, that “the paving district includes parts of three different and distinct streets-.” AVhat the rule would be if that were shown we need not inquire. The fact that the street varies, in width is not deemed material, if true, as it is not contended that there is a variance in width of the paving. It is shown by the -map that Missouri avenue extends westward from Thirteenth street to Twentieth street wliere it “buts” against about the middle of block 123, and is then deflected southward to the south side of the block and is continued to the westward. Since this is shown to constitute a part of the avenue, we may presume that such is the fact. The claim that the avenue is of different levels cannot be material, since it is seldom that a street of any considerable length can be found of the same level throughout, and the question of the propriety of paving streets, whether of the same or different levels, must necessarily be left to the judgment and' discretion of the council and those interested where petitions are necessary. No petition was required in this case.

As said in the abstract, the chief ground relied upon for relief is that ordinance No. 1,393, Avliich defines the boundaries of the district, is vague, indefinite and uncertain. The ordinance, omitting the formal parts, is as follow's: “Section 1. That improvement district No. E, being paving district number 19, be and the same is hereby created, and the limits thereof fixed and defined as fol-' lows: Ail that territory on each side of Missouri avenue from the east line of Twenty-fourth street to the east line of Thirteenth street, and back to the middle of the block on each side of said-portion of said avenue.” Passed July 31, 1905, and approved August 1, 1905. The exhibit shows that the ground is platted into lots and blocks on each side of the avenue throughout its entire length, the blocks being of the same size along its hordin’, with the exception of block 2 on the north and block 3 on the south 'at the extreme eastern end and abutting on Thirteenth street, which are somewhat smaller. Sublot 5 of lot 10 is the same size of the other blocks, but is not all subdivided into lots, .so that there are “blocks” on either side of the avenue the whole of the distance. The ordinance specifying that the district shall extend “back to the middle of the block on each side of said portion of said avenue” would be sufficiently specific, notwithstanding the conceded fact that the ordinance might have been much more skilfully drawn. When read in the light of common understanding, the idea is clearly presented that the district extends to the middle of the adjacent and abutting blocks on each side of the avenue. This is not in conflict with our decision in Wiese v. City of South Omaha, 85 Neb. 844" court="Neb." date_filed="1910-01-20" href="https://app.midpage.ai/document/wiese-v-city-of-south-omaha-6658936?utm_source=webapp" opinion_id="6658936">85 Neb. 844, for in that case the ordinance -extended the limits of the district “to the alley,” where there was no ally within the abutting blocks — nothing which could lend any aid to the ascertainment of the boundaries of the district. •

The statute under which this improvement was ordered (laws 1903, ch. 17, sec. 01) provides that before such improvements may be made an estimate of the total cost thereof, together with detailed plans and specifications thereof, shall be made by the city engineer and submitted to the council, and, if approved, shall be reiurned to the engineer and kept by him subject to public, inspection, and the work shall conform substantially therewith, and no contract shall exceed snch estimates. The estimate of cost as made by the engineer is set out in the abstract and is, “19,800 sq. yds. of paving at $2.10, $41,580; 8,000 lineal feet of curbing at 45'c, $3,600; 5,000 cubic yds. of excavation at 25c, $1,250; total $46,430.” Signed by the engineer. This appears to have been a sufficient compliance with the statute as to the estimate of cost. There is no sufficient showing in the abstract as to the furnishing or failing to furnish detailed plans and specifications of the Avorlc, and that question is not before ns.

The ordinance defining the boundaries of the district was passed July 31, 1905. The abstract' does not show when the estimate of the cost of the improvement was presented to the council. It must be presumed, in the absence of proof to the contrary, that all requirements of the law were complied Avith and the authority of the city to cause the paving to be done vras fixed by the ordinance and the steps then taken. The fact that after a part of the paving had been done a neAV contract Avas entered into with the contractor could make no difference.

Some questions are presented by the briefs Avliich we cannot notice for the reason that they do-not arise from the record before us. All presumptions are in favor of the correctness of the judgment.

The judgment of the district court is

Affirmed.