Kittle v. Fremont, 1 Neb. 329

Kittle v. Fremont

1 Neb. 329 | Neb. | 1871

Lake, J.

In the month of January, 1857, the plaintiff, Robert Kittle, together with several associates, known and acting as the Town Company, entered upon that portion of the public lands of the United States now included within the limits of the town site of Fremont, and surveyed and laid out a town with blocks, lots, streets, alleys, and a public square or park. By this survey and plat, the park, which is the subject of dispute in this proceeding, was located between Eighth and Ninth streets, running east and west, and F and H, running north and south through the town. Broad street, a wide and principal avenue, between F and H streets, was intersected by the park, which covered ground equal in area to two blocks, together with that *335portion of Broad street upon which it was located. This was the condition of things until November, 1861, when the Board of Trustees of the town of Fremont conceived the idea of re-locating the park, by vacating all that portion thereof lying west of the" east line of Broad street, and extending its boundaries east across F street, so far as to include block ninety-six. Up to the time of this change .no improvements had been made upon the park., It was merely unimproved, vacant prairie ground. But very sopn thereafter it was fenced, set out with shade and ornamental trees, and, in its appearance, began to indicate the use to which it was devoted. By this change Broad street was extended and opened through what was, until then, a portion of the old park ground. A new block of lots was carved out of that portion of the park lying west of Broad street. Portions . of this new block have since been conveyed to the defendants, the Methodist Episcopal Church and School District Number One of the town of Fremont, for the purpose of erecting thereon a church building and school house. It further appears that since the re-location of the park, which act has been generally acquiesced in by the inhabitants of the town, the population of Fremont has increased from not more than two or three hundred to nearly, if not quite, two thousand souls; that the permanent settlement, building and business of the town have progressed and become established with direct reference to the park as it is now defined; that no objection has been interposed to this change by any person whose property fronts or borders upon the park, as originally or now ■established; that neither of these plaintiffs own any grounds •adjoining the park, nor upon the streets affected by this .change, nor are they shown to be affected to any greater .extent, or in any other manner, than are all the rest of the inhabitants of Fremont. It further appears that subsequently to this action by the Board of Trustees, the legis*336lature of this State, in January, 1862, confirmed all and singular their acts in this behalf, and declared them to be valid in law.

The object of this suit is to enjoin the church and school district from erecting their proposed buildings upon the 'grounds so conveyed to them, and also to prohibit the town authorities from further incumbering the park grounds, as originally laid out, and to compel them to re-locate and establish said park and streets as they are designated upon the original plat of the town.

The magnitude of the interests involved in this controversy, and the disastrous results which would necessarily follow to a large number of the inhabitants of Fremont, should the prayer of the petitioners be granted, are sufficient reasons why the court should hesitate to grant it, and most certainly not until their right to such relief be very clearly established.

Several very interesting questions are presented by this record, which have been ably argued by counsel, but the views we take of the case relieve us of the necessity of . noticing but one of them.

The plaintiffs sue on behalf of themselves and all others, the property holders of the town of Fremont. They do not pretend to have any interest in the subject matter of the suit, which is not common to all the other residents of the town, whether they be freeholders' or ■ not. The pretended grievance is one of general interest, and the question which we meet at the threshold, to be first determined, is, have they shown such an interest as will enable them to maintain this suit ?

The pretended wrong of which the plaintiffs complain is the closing up of certain of the public streets and alleys, and the vacation of a portion of the public park. This is in the nature of a common or public nuisance, and if done without lawful authority, can be remedied by a public *337-prosecution, instituted by the proper public officer, on behalf of the people. So, too, could a suit be maintained ■by any individual of the town in his own right who is specially injured thereby. The rule in such cases seems to be well established that in the case of a public nuisance, where a bill is filed by a private person, he cannot maintain his standing in court unless he aver and prove some special injury to himself. — City of Georgetown v. The Alexandria Canal Company, 12 Pet. 91; Smith v. City of Boston, 7 Cush. 254; Hale v. Cushman, 6 Metcalf, 425 ; Doolittle v. The Supervisors of Broome County, 18 N. Y. 155.

The plaintiffs are simply resident freeholders of the town of Fremont. They have no real estate bordering upon the park, or upon either of the streets affected by this change. They have sustained no special damage by reason thereof, and a very large majority of the inhabitants are benefited thereby. They present themselves before the court in the character of volunteer champions of the public interests, and in its behalf challenge the officers of the town to meet them in the courts of justice to defend their official acts, which appear not only to have been in harmony with the expressed wishes of a large majority of the people, but acquiesced in by all the inhabitants for several years without objection. Under these circumstances we are most clearly of the opinion that the plaintiffs show no such interest in the subject of this suit, nor are they in such position, as to enable them to maintain this action.

We might safely stop here, but there is one other question of interest to the people of Fremont, to which it is not improper to give a passing notice.

It is, as has been urged, that the action of the town board-in making this change was entirely without authority of law, and therefore void, and being void, the act of the legislature ratifying and confirming their acts, can have no *338binding force or effect whatever. . Now, without any reference to the effect, if any, of this confirmatory statute upon private rights and interests, we are quite clear that so far as the public are concerned, it was entirely competent and proper for the legislature to enact it, and that to this extent full effect must be given to its provision.

The judgment of the District Court is in all things affirmed.

Judgment affirmed.