109 Neb. 843 | Neb. | 1923
This action was brought under section 4263, Comp. St. 1922, to have certain tracts of land, aggregating 136 acres, detached from the corporate limits of the city of Rulo. The trial resulted in a decree detaching all except a minor part of the lands described, and defendant city has appealed.
The city of Rulo was incorporated in 1858 by a special act of the territorial legislature. The land in question is all owned by the plaintiff Edgecombe; the other plaintiffs are legal voters residing on the land. The lands were at one time platted either as a part of the original incorporated city or of one of its additions, but, while platted on paper, the streets and alleys have never been opened or worked, and for more than 40 years the lands
1. One of the provisions of the section (section 4263, supra,) under which the action was brought is: “If the court find in favor of the petitioners, and that justice and equity require that such territory, or any part thereof, be disconnected from such city or village, it shall enter a decree accordingly.” Defendant insists that the evidence does not warrant such a finding; that the proximity of the lands to the post office, church and school in Rulo, and because the occupants of the land are in a position to enjoy these privileges, because the bonds for the lighting plant and bonds for a water plant were voted while the land was inside the city limits, and because the residents thereon would have the benefit of city police protection, is sufficient to base a. contrary finding to that made.
We cannot accept this view. So far as the post office,
2. Another provision of said section 4263 is: “The provisions of this section shall not apply to lands laid out into city or village blocks, lots and streets.” Defendant argues that, under the rule laid down in Sole v. City of Geneva, 106 Neb. 879, wherein it is held: “When a privilege or right is conferred by statute, on certain prescribed conditions, and a party desiring to avail himself of such privilege or right brings action for the enforcement thereof, he must allege and prove all the facts that are essential to a strict compliance with the prescribed conditions”1 — the territory cannot be disconnected from the city. If the territory in question, at the time the action was brought, was laid out into city blocks, lots and streets, defendant’s contention would be sound, but we think the provision of the statute quoted has reference to conditions existing at the time the action was brought, and not to a condition existing at some.
The decree is
Affirmed.