109 Neb. 711 | Neb. | 1923
This action was commenced October 5, 1921, by plaintiff Karlin, as a taxpayer, and in his own right as a property owner, to enjoin the defendant Franciscan Sisterhood of Nebraska (and • other defendants whom It will not be necessary to mention) from closing up and taking possession of certain streets alleged to have been illegally vacated and sold by the city of Columbus to said defendant.
The said defendant has been the owner for many years of blocks 3, 4, 12, and 13, Chambers addition to
Appellant bases his right to relief upon the following proposition, so far as need be considered: (1) That the vacation of the streets was induced by and solely resulted in private benefit to defendant, and was so done without providing for or paying damages to plaintiff and other property owners. (2) That the sale of the vacated streets was without adequate consideration and constituted a fraud upon the rights of plaintiff and other taxpayers. (3) That the vacation and sale of the streets: to defendant Avas hasty and ill-considered'; was done without regard to the rights of the taxpayers and property OAvners of the city, and was inducéd by the defendant for its OAvn personal 'financial benefit, and did not benefit, the public or the city; and that said acts by the city council constituted an abuse of discrétion of the mayor and council, and amounted to a fraud.
The plaintiff produced a witness who testified that the value of the vacated lots which were sold to the .-defendant was $2,000 and plaintiff offered testimony that by the vacation there would ensue a large expenditure to drain the adjacent streets; also, that the plaintiff’s property would be depreciated in value; however, the testimony as to extra cost of drainage was disputed by testimony of defendant. It appears without contradiction that plaintiff has outlet on other streets than those vacated, but he testifies that, in going to certain parts of the city, he will have to go a longer ' route. Such, in brief, is the state of the record on the more important facts.
The appellee insists that plaintiff has no standing to maintain the-action to enjoin the occupation of the vacated streets, and because plaintiff, after the appeal was taken, asked for a modification of the decree by asking affirmative relief in retaxing costs, he. is pre
Under the proofs appearing in the record, we are not able to say that the council acted arbitrarily, and abused the discretion vested in them by the statute, in vacating the streets, even though it may have resulted in benefit to the defendant. Such an institution as is maintained by the defendant has more than a mere personal pecuniary object. . They are regarded as being of general benefit to the whole community, both city and surrounding country. To have a place where care can properly be bestowed upon the sick and afflicted, without regard to whether they are able to pay, is of itself sufficient proof that it does tend to help and improve the necessities and conveniences of the public at large. Perhaps with its enlarged capacity it may bring patients and their relatives, attendants and friends from a distance, and thus enchance the trade of the merchants and places of entertainment where food and lodging is furnished. These streets were near the outskirts of the city, and there is testimony which shows that these vacated streets never had heavy travel. All these matters, and perhaps others which the council may have had in mind, were no doubt considered, and there is not sufficient proof in the whole record to show that the council acted arbitrarily, or abused their discretion. To warrant the court in interfering with the action of a city council acting within the scope of their statutory authority, the evidence should be such as to show with reasonable certainty that their action could not be construed as having been taken with a view of the general public welfare. The principal question in
The plaintiffs property does • not abut upon the streets vacated, nor is the ingress and egress to his property interfered with. Under such circumstances he was not entitled to damages on account of such vacation. Lee v. City of McCook, 82 Neb. 26, and cases cited therein.
Lastly, as to the claim that' the salé of the vacated streets by the city being for a grossly inadequate price, such sale should be declared void. One witness, as above stated, who was interested in same manner as. plaintiff gave his opinion that the streets conveyed to defendant were worth- $2,000. He appeared as an expert witness as to such value. The trial judge was not bound to accept the opinion of the witness. But it should be remembered, further, that the defendant was claiming a part of the vacated portion by adverse possession. As to whether or not such claim was valid we do not determine, yet the mere, claim, enforced by the fact that defendant had erected a brick building on it and had been in possession for a .number of years, no doubt would affect the market value. - We may also infer that the mayor and members of the council, being residents, and no doubt more. or less familiar with values of property, used their knowledge when the sale was ordéred. Under these circumstances the finding of the trial judge should not be overturned.
The evidence not being sufficient to establish .an abuse of the discretion of the city council, it is not necessary to pass upon the questions ds to whether plaintiff was entitled to maintain the action. The
The action of the district court in dismissing plaintiff’s petition is right, and is
Affirmed.