149 N.W.2d 747 | Neb. | 1967
The personé named as defendants herein, claiming to be all of the owners of abutting lots, filed deeds vacating the plat of parts of the streets and alleys in Hillside Addition to the City of Ord. The city thereafter filed a petition in the district court for Valley County, in which it prayed for the cancellation of those deeds of vacation and that title to the streets and alleys described be quieted in the city. After trial, the district court found that plaintiff had failed to prove the allegations of its petition and that the vacation deeds are valid. We affirm the judgment.
A careful review of the record reveals little, if any, conflict as to the facts. The plat of Hillside Addition to Ord was filed for record on October 8, 1884. Defend
The City of Ord never passed an ordinance accepting the plat of Hillside Addition as required by section 17-567, subsection (6), R. R. S. 1943, which reads as follows:
The city could have accepted the plat by using the areas platted for streets and alleys for public purposes. Village of Maxwell v. Booth, 161 Neb. 300, 73 N. W. 2d 177. It did not do so.
The defendants proceeded under the provisions of the following statutes:
“Any such plat may be vacated by the proprietors thereof, at any time before the sale of any lots therein, by a written instrument declaring the same to be vacated, duly executed, acknowledged or proved and recorded in the same office with the plat to be vacated. The execution and recording of such writing shall operate to destroy the force and effect of the recording of the plat so vacated, and to divest all public rights in the streets, alleys, commons, and public grounds laid out or described in such plat. In cases where any lots have been sold, the plat may be vacated, as herein provided, by all the owners of lots in such plat joining in the execution of the writing aforesaid.” § 17-419, R. R. S. 1943.
“Any part of a plat may be vacated under the provisions and subject to the conditions of section 17-419; Provided, such vacating does not abridge or destroy any of the rights: and privileges of other proprietors in said plat. Nothing contained in this section shall authorize the closing or obstructing of any public highways laid out according to- law.” § 17-420, R. R. S. 1943.
All of the owners of lots abutting on the areas vacated have joined in the vacation deeds. This court held in the case of Village of Hay Springs v. Hay Springs Commercial Co., 131 Neb. 170, 267 N. W. 398, that only those
Section 17-420, R. R. S. 1943, provides that nothing contained in this section shall authorize the closing or obstructing of any public highways laid out according to law. This court held in Village of Hay Springs v. Hay Springs Commercial Co., supra, that this provision does not apply to nominal streets designated on plats which were never used as. public highways. The evidence shows clearly that the parts of streets and alleys vacated by defendants were never opened nor used for the public as streets, nor for any other public purpose. The entire area had been enclosed by fences and used for pasture or the growing of crops.
Plaintiff contended that because the Stewarts and the Rickards did not join in the vacation deeds, they were not effective. The evidence shows that only the portion of the alley in the west half of Block 11 was vacated and that these persons owned lots abutting on the alley in the east half of the block. The only use ever made of this alley for public purposes was the placing of a pole, about one-fourth of the way through the alley from the east, in connection with electric service to the Stewarts and Rickards. The alley was never used for travel through the block. If this alley were to be opened for travel clear to the west end of the block, one using it could go nowhere except to the end of the alley. The east end can still be used for access to their properties by the Stewarts and Rickards if they desire to have it opened and improved. They also both have access from Twenty-first Street and access along the north side of the lots owned by the Rickards may be had from O Street.
The case of Johnson v. Buhman, 98 Neb. 236, 152 N. W. 403, involved the vacation of an area platted in 1886 as an alley, extending east and west through the middle of a block in Leigh, Nebraska, which joined an alley which was open extending north and south through the
The plaintiff also claimed to own a 12-foot strip from its reservoir out in the country south of the city to and connecting with the east 12 feet of P Street just south of Block 11, and that as proprietor it was a necessary
The district court correctly determined the issues in favor of the defendants and its judgment should be affirmed.
Affirmed.