17 Neb. 587 | Neb. | 1885
In tbe .year 1866 Tbomas 0. Durant, tbe owner of certain lands near tbe town of Columbus, caused them to be surveyed and platted into lots and blocks, the plat of which was filed as tbe Capital addition to the town of Columbus. Tbe lands included in tbe survey and plat
In the notice of this application given to the landowners,
Upon a re-trial, a jury being waived, the cause was tried to the court upon an agreed statement of facts, in connection with certain exhibits attached thereto. The stipulation contains substantially the facts stated above, with the additional facts that the value of the land taken was $1,051; also the amount of taxes paid by defendants in error. That one-fifth part of all the taxes paid were a lien on the land taken by plaintiff in error; and in case defendants in error did not recover as owners, they should have one-fifth part of the taxes paid, and legal interest thereon. That defendants in error have been in the exclusive possession of the land since the date of the tax deed, excepting the possession of plaintiffs in error of their right of way. This statement of facts was agreed upon, subject to the objection of defendants in error to the consideration by the court of any evidence or statement tending to show that they were not the owners of the land, for the reason that the same would be incompetent and immaterial, the plaintiff in error, by its condemnation proceedings and agreements, being estopped to deny their ownership; also subject to the objection of plaintiff in error that the tax deed was null and void upon its face, and insufficient in law to convey any title to defendants in error; and the further objection that the facts agreed upon were insufficient in law to authorize a recovery by defendants in error. The district court found the issues in favor of defendants in error, and rendered judgment for the stipulated damage. A motion for a new trial was filed by plaintiff in error, the grounds therefor being: First, That the finding and judgment were contrary to law; Second, That they were not
It is conceded by plaintiff in error that unless the tax deed is void upon its face, the judgment should be affirmed. It is contended by defendants in error that plaintiff in error is not in a situation to question their title.
If the position of defendants in error is correct it will then become-unnecessary for us to examine as to the validity of the deed.
It must be observed that the answer of plaintiff in error fails to allege any facts which would render the deed void. It is true the ownership of defendants in error is denied. Then, why institute and maintain the condemnation proceedings against them ? It is also true that the answer alleges that, prior to the date of the condemnation, defendants in error had purchased the forty acres—of which it Was a part—at tax sale, and had paid certain taxes thereon ; and that the sale was void, and did not convey any title. But why void? So far as the allegations of the answer are concerned the land was taxable when taxed. The taxes were legally levied, the sale lawfully made, and the deed properly executed.' There is an entire absence of distinct facts showing the illegality of the sale or of the deed. This is not enough. Southard v. Dorrington, 10 Neb., 119. In the case cited, it is said that in an action at law for the possession of the premises under a tax deed, such an answer would probably be sufficient. But that is not this case. The holder of the original title does not attack the title of defendants in error, and the plaintiff in error proceeds against them directly as the owners.
But aside from the questions presented by the answer we can see no error in the decision and judgment of the ■district court. The plaintiff in error has recognized the
Section 97, Compiled Statutes, Ch. 16, authorizes the appiontment of commissioners to inspect real estate taken by a railroad company, if the owner shall refuse to grant the right of way through his or her premises., The-refusal of the owner is jurisdictional. Mills on Eminent Domain, § 107. 1st Redfield on Railways, pp. 239 and 240. Reitenbaugh v. Chester Valley Ry. Co., 21 Penn. St., 100. The petition in this case for the appointment of commissioners to assess damages alleged that the lands described in the petition appear to belong to defendant in error and others, but nothing is said as to Durant. It is also alleged that plaintiff in error had made application to the owners, to purchase the right of way, but had been unable to treat with them for the purchase of the same, they refusing to-grant the lands for the purposes required. Taking the record as our source of information, it is very evident that Durant was not one of whom it tried to purchase the lands. Durant is claiming nothing in this proceeding. For aught that appears he may have abandoned all claim to the land. There was no controversy before the commissioners as to ownership. The company, in our judgment, was estopped from denying the title or estate of defendants in error in the premises, or from asserting that they had any other title than that attributed to them in the proceedings to condemn. Rippe v. Chicago, Dubuque & M. R. Co., 23. Minn., 18.
The judgment of the district court being, in our opinion,, correct, for the reasons here given, it is unnecessary and would not be proper for us to discuss the question of the-
The judgment of the district court is affirmed.
Judgment affirmed.