92 Neb. 63 | Neb. | 1912
The appellees, Prank C. Marsh, John C. Stalter, George Hirschfleld and five other persons, filed their petition in the office of the clerk of the district court for Hitchcock county, seeking to have certain territory therein described detached from the village of Trenton in said county. In addition to the allegations that they are legal voters, except as to a part, and the exclusive owners and in possession of said territory, they say in their petition (a) that when the village was incorporated large tracts of wild, grazing and purely agricultural lands “in all directions from and outside of the platted lots, blocks, streets and alleys of said village,” including the lands and territory sought to be detached, were incorporated in said village; (6) that the lands and territory sought to be detached are purely agricultural, and are used by the owners “for farming, grazing and stock-raising, and as rural residences, and no part is laid out into village blocks, or lots, and there are no streets, alleys, or thoroughfares except the public highway “on the section line dividing section 2, township 2, range' 38, from section 35, township 3, range 33,” and which road was laid out by the county commissioners and extends many miles east; and (c) that the case was submitted on the petition of. the plaintiffs, Prank O. Marsh, John O. Stalter, George Hirschfleld, John H. Brown, Ralph S. Otis, Nannie Marsh and Mattie Stalter, the amended answer of the defendant, the village of Trenton, and the reply, and the evidence; and that the court found in favor of the said plaintiffs named (the name of the plaintiff Thornhill being omitted from the list) and the territory disconnected by the judgment of the district court includes only the tracts indicated on plat “exhibit A” as the Hirschfield, Stalter, Marsh and Brown tracts,
It is urged in the appellant’s brief that these parties carry on business in the village or perforan their official duties at the court-house in Trenton as county officers; that they and their families get their mail at the village post office; that they trade at the village stores, and send their children to the village school, and use the village
It is contended by the appellant, the village, (1) that the petition does not state facts sufficient to constitute a cause of action; (2) that the finding and decree of the court is not sustained by sufficient evidence, and that the testimony introduced by the applicants clearly establishes the fact that the village could “reach out and connect the territory,” and for that reason that the district court should not have granted' the petition. It is urged that the petitioners “should not be allowed to secede over the objections of their fellow villagers.” Section 8978, Ann. St. 1909, provides, among other things: '“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.” The case of the Village of Hartington v. Luge, 33 Neb. 623, is cited in support of the appellant’s contention that the land might be annexed to the village, and therefore that it should not be disconnected-. In the opinion in that case it is said: “It will be seen that to justify the annexation of territory it must appear that such territory, or some part, would receive material benefit from the annexation, or that justice and equity require such annexation. Unless one of these conditions exist, there is no authority in a village board or the district court to annex territory;” but, in the opinion it is said: “If this action could be sustained upon the facts pleaded and prayed, then a village might annex a whole township or county, as such
In Bisenius v. City of Randolph, 82 Neb. 520, it is said by Mr. Justice Root, speaking for this court: “In State v. Dimond, 44 Neb. 154, * * * we adopted from the opinion of Mr. Justice Mitchell in State v. Village of Minnetonka, 57 Minn. 526, a definition of the conditions essential to vest county commissioners with power to incorporate territory within a municipality ; that is, such lands must ‘have some unity of interest with the platted portion, in the maintenance of a village government.’ ” Mr. Justice Post is quoted as saying in the opinion in State v. Dimond, supra, “that the rule applied is not only reasonable, but safe and logical.” This court has said, in the third paragraph of the syllabus in Bisenius v. City of Randolph, supra: “Upon an appeal in an action under said statute (sec. 8978), the judgment of the district court will be affirmed, unless it is made to appear that the trial judge committed an important mistake of fact or. made an erroneous inference of fact or of law.” It would seem that the foregoing rule disposes of this case. In that case Judge Root, in the body of the opinion, says: “Plaintiff’s realty forms two compact tracts of farm land aggregating over 200 acres, separated only by a road; that not only is this land not platted, but there intervenes between it and the platted portion of defendant unplatted real estate used for pasturage.” In the instant case there is. an unplatted tract between the village and the land sought to be detached; also the land detached is not cut up into lots and blocks and streets and alleys. Judge
In Michaelson v. Village of Tilden, this court held that a judgment of the district court in a proceeding under the statute to detach territory from a municipal corporation Avould not be impeached upon appeal, in the absence of a shoAving that the trial judge committed an important mistake of fact, or made an erroneous inference of fact or of law. The foregoing is substantially the syllabus adopted in that case. The case seems to be on a parallel with the instant case. The action was a proceeding by the owners in severalty of contiguous tracts of land to procure their detachment from the village of Tilden. Commissioner Ames wrote, in the body of the opinion: “In the absence of evidence of any specific fa.ct or circumstances tending to impeach the justice of the decree, we do not see how we can intelligibly revise it.” lie says that the trial judge was probably personally familiar with the laxxd and with the village and with the sitxxatioxx and surroundings, and that his judgment may have been influenced “by evidence
In Gregory v. Village of Franklin, 77 Neb. 62, it was held: “A judgment of the district court in a proceeding under the statute, * * * to detach territory from a municipal corporation, will not be impeached upon appeal, in the absence of a showing that the trial judge committed an important mistake of fact or made an erroneous inference of fact or of law.” The former case of Michaelson v. Village of Tilden, 72 Neb. 744, was followed and approved. In that case the village contended that at the time of its incorporation it had a population of 290, and that its population had increased until the village contained 900 inhabitants; that the plaintiffs became severally owners of said land a long time after the incorporation, with full knowledge that the land Avas included within the corporate limits of the village. It was admitted that the land Avas used for agricultural purposes, but alleged that it was adapted to being cut up into residence lots. Commissioner Oldham, in Avriting the opinion of this court in the case last cited, emphasizes the holding of the court in Michaelson v. Village of Tilden, 72 Neb. 744, to the effect that a judgment in a proceeding under the statute “to detach territory from a municipal corporation will not be impeached upon appeal, in the absence of a showing that the trial judge committed an important mistake of fact or made an erroneous inference of fact or of law.” He says: “There is certainly nothing before us in this record that shows either a mistake of law or fact by the trial judge. The right to have unplatted farm lands disconnected from the corporate limits of cities and villages has been asserted
In Village of Wakefield v. Utecht, 90 Neb. 252, section 8977, Ann. St. 1909, was construed and was “held broad enough to permit a village located upon the border of one county, in a proper case, to annex contiguous territory situated in an adjacent county,” but it was held that the burden of proof “in an action to annex additional territory to a village * * * is upon the village to establish by sufficient averments and evidence that the territory sought to be annexed will be benefited by the annexation, or that justice and equity require that such territory be annexed.” It was held that the evidence was insufficient to sustain the decree which annexed certain territory to the village of Wakefield.
In Winkler v. City of Hastings, 85 Neb. 212, it was held: “Where legislative power to detach territory from a city lias been delegated by statute to the mayor and council, an appeal from the action of that body in refusing to disconnect particular tracts cannot be made the means of transferring such power to the district’ court.” In that case the court cited the City of Hastings v. Hansen, 44 Neb. 704, where it was held that “the power to create municipal corporations and the power to enlarge or restrict their boundaries are legislative powers; and it has been doubted if the legislature can pass a valid act giving courts jurisdiction to disconnect by decree any part of the territory of a municipal corporation of the state merely at the suit of the owner thereof.” Judge Rose, in delivering the. opinion of this court in Winkler v. City of Hastings, said that the form in which the act amending section 4 of the charter in that case was passed conferred upon the mayor and council authority to detach territory by ordinance, and that the same was legislative; that, “in attempting to confer the same power upon the district court by direct appeal
Under the rule laid down in Bisenius v. City of Randolph. supra, and the decisions of this court upon which the opinion in that case is based, the judgment of the district court was properly exercised, and there appears to be no reason for setting aside its judgment. As announced in Bisenius v. City of Randolph, Michaelson v. Village of Tilden, and Gregory v. Village of Franklin, supra, a judgment in a proceeding under the statute “to detach territory from a municipal corporation will not be impeached upon appeal, in the absence of a showing that the trial judge committed an important mistake of fact or made an erroneous inference of fact or of law.” There is no such showing, and the judgment of the district court seems to be fully warranted.
The judgment of the district court is
Affirmed.
I concur only with result affirming the judgment of the district court.