123 Neb. 324 | Neb. | 1932
This is an action brought by the city of Wilber against Albert Bednar and other defendants under section 17-409, Comp. St. 1929, for the purpose of annexing certain territory belonging to each of said defendants. From a decree of the trial court finding against the defendants and annexing the territory of each to the city, the defendants Adolph B. Sobotka, Edward H. Vosika, Anton Vit, Emil Fuchs, and Anna Bruha bring the case to this court on appeal.
The decree of the trial court is assailed as being wholly unsupported by the evidence. The testimony is to the effect that the several tracts of land belonging to the appellants lie adjacent to the corporate limits of the city of Wilber and have been subdivided into lots and blocks, streets and alleys, that a number of people have established their homes thereon and are now enjoying the benefits of city utilities, such as electric lights, city water, sanitary sewer and the ice and cold storage plant, all of which are owned and operated by the city of Wilber. The testimony, however, discloses that the ice and cold storage plant was used generally by farmers in the territory surrounding the city of Wilber and that these defendants re
The evidence shows that the defendant Vosika is the owner of, and occupies and cultivates, 76 acres of land adjoining the city of Wilber on the north, less two tracts in the southeast corner 154 feet by 123 feet and 66 feet by 123 feet which had been sold by him prior to the commencement of this action for residence purposes. The amount of the land sought to be annexed belonging to this defendant is a strip 622 feet by 300 feet, less the two small subdivisions thereof above mentioned, both of which were annexed by the trial court and from which no appéal was taken. The part sought to be annexed to the city is claimed to be an integral part of the farm on which all his farm buildings and improvements, consisting of his barns, sheds, pens, etc., are located. The evidence shows that the defendant is engaged in farming and no
The city of Wilber, according to the 1920 census, had a population of 1,255 persons and in 1930 a population of 1,352. All of said defendants get their mail at the post office in Wilber, attend the churches of the city, and are in the same school district as the inhabitants of the municipality. It is also disclosed by the testimony that the bonded indebtedness of the city is approximately $308,000 and that the mill levy within the city for the year 1930 was 19 mills. It is not disputed that the utilities and improvements of the city are of sufficient size and capacity to service all the properties sought to be annexed.
Section 17-409, Comp. St. 1929, is in part as follows:
“If the court find the allegations of the petition to be true, and that such territory, or any part thereof, would receive material benefit by its annexation to such corporation, or that justice and equity require such annexation of said territory, or any part thereof, a decree shall be entered accordingly; and a copy of the decree of the court, duly certified under the seal thereof, * * * shall be filed and recorded in the office of the county clerk or recorder of the county in which such territory lies.” This statute has been before this court on numerous occasions, and while each case has been determined generally upon the facts of the particular case, it has repeatedly been held that to justify the annexation of territory it must appear that it would receive material benefit from the annexation, or that justice and equity require such annexation.
As to the defendant Edward H. Vosika, a closer question is involved, as his property is used primarily for agricultural purposes. The evidence discloses, however, that the improvements of the city of Wilber have been made close to his property so that he has access to practically all the utilities of the city; that he has sold off tracts of his land for residence purposes, and that he undoubtedly has the same unity of interest with the city of Wilber as the other defendants herein and which have been heretofore mentioned. He complains, however, that the ordinances of the city of Wilber will compel him to move his live stock outside of the city limits, which will make it necessary for him to remove his buildings and cause him considerable damage. This, however, cannot be an absolute defense, otherwise cities and villages would be seriously handicapped in taking in adjacent territory where necessary expansion would require it. In the case of City of Wahoo v. Tharp, 45 Neb. 563, the city of Wahoo commenced an action to take several tracts of real estate into the city, and for a defense it was alleged that at a prior date a like proceeding had been instituted for the city for the purpose of annexing the same territory, and that a judgment had been rendered in favor of the defendants. The reply admitted the former proceedings and judgment, but alleged that subsequent to the date of the judgment the city had constructed an extensive and complete system
The defendant Edward H. Vosika is receiving practically all of the benefits that are mentioned in the above case, and the facts mentioned therein are almost identical with those in the case at bar. In the case of the Village of Syracuse v. Mopes, 55 Neb. 738, this court said: “This section authorizes the extension of the boundaries of a town or village so as to include adjacent lands, against
Certain testimony was produced indicating that the property of the defendant Vosika was used exclusively for agricultural purposes, and while this evidence is competent in a case of this character, it is not in all cases controlling. Where the evidence shows that the property involved would be materially benefited, or that justice and equity require its annexation, the fact that it is used for agricultural purposes will not of itself be a bar to its annexation. To so hold would practically defeat the purposes of the statute in a great many instances.
The record in this case discloses that the trial court viewed the premises after hearing all the evidence in the case and undoubtedly such examination was important in determining the equity of the parties. The rule in such cases has been laid down by the court in the case of State v. Delaware-Hickman Ditch Co., 114 Neb. 806, as follows: “When an action in equity is appealed, it is the duty of this court to try the issues de novo and to reach an independent conclusion without reference to the findings of the district court. Comp. St. 1922, sec. 9150. But in a case wherein the court has made a personal examination of the physical facts, and where, in the same case, the oral evidence in respect of material issues is so conflicting that it cannot be reconciled, this court will consider the fact that such examination was made and that such court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.” After hearing the testimony of the witnesses, which was very conflicting as to the material issues of the case, and then making a personal examination of the physical facts, the trial court came to the conclusion that justice and equity required that the corporate limits of the city be extended to include said territory. This is a fact that we will consider in arriving at a decision in this case on appeal.
For the reasons above set forth, the decree of the trial court is in all respects
Affirmed.