89 Neb. 418 | Neb. | 1911
The plaintiffs brought this action in the district court for Brown county to quiet their title to certain lands in the defendant village. There was a general demurrer to the petition, which was overruled, and, the defendant refusing to plead further, a decree was entered for the plaintiffs. The defendant has appealed.
The petition alleges that in 1884 one Nannie J. Osborne, who was unmarried, “made, executed, acknowledged and recorded her certain town plat whereby she laid out and platted a portion of land (describing it) into an addition to the village of Ainsworth, to be called and known as ‘Osborne’s Third addition’ to said village,” and that these plaintiffs were the owners of all the lots in certain blocks of said plat on the 18th day of November, 1908, and on that day duly vacated the same. The petition also alleges the vacation as the statute provides may be done, and that
It is contended by the defendant that, when the plat of an addition to a village is made and recorded, the village becomes the absolute owner of the streets shown upon the plat, and, if a plat is duly vacated under the provision of the statute, the village is the owner of the streets. Section 106, art. I, ch. 14, Comp. St. 1909, provides: “The acknowledgment and recording of such plat is equivalent to a deed in fee simple of such portion of the premises platted as is on such plat set apart for streets or. other public use, or as is thereon dedicated to charitable, religious, or educational purposes.” The following sections provide for vacating plats: Section 108. “Any such plat may be vacated by the proprietors thereof at any time before tin*, 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; and 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. And 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.” Section 109.
As we have already seen, the petition plainly alleges that none of these streets are public highways or have been laid out or used as such. There would therefore be no apparent difficulty in the case, if it were not for the decision of this court in Krueger v. Jenkins, 59 Neb. 641, which is quoted and approved in City of Wahoo v. Netha
We think, therefore, that the petition states a cause of action, and that the judgment is correct. It is therefore
Affirmed.