79 Neb. 638 | Neb. | 1907
This cause was instituted in the district court for Douglas county, under what is commonly called the “Scavenger act,” to foreclose for delinquent taxes on a large number of tracts of land in Omaha. James Megeath and four other defendants in the action, each being the owner of one or more parcels of land, filed answers setting forth substantially the same defense. By order of the court,
There were other taxes included in the foreclosure proceedings than the special assessments for parks, parkAvays and boukwards, hut complaint is made only as to the last named special assessments. The special assessments complained of Avere those arising from the establishment of two boulevards in the city of Omaha, one, knoAvn as the “Southwest Boulevard,” extending from Arbor street on the nortli to RivervieAV Park on the south, and the other, extending from Burt street on the north to Pacific street on the south, known as the “West Central Boulevard.” The special assessments were-levied upon property alleged to have been specially benefited by the establishment of the boulevards, and to raise a fund Avith which to pay for (he lands appropriated for boulevard purposes. The first step in this public improvement Avas taken in March, 1898, by the passage and approval by the mayor and council of the city of Omaha of ordinance No. 4,872, which declared the necessity of appropriating the property therein described for boulevard purposes. This ordinance provided for the appointment of appraisers to assess the damages of the owners of property to be appropriated. Appraisers were appointed, who met and appraised the damages and made report of their acts as such appraisers. Some time thereafter the city engineer of Omaha prepared and submitted to the city council a plan of assessment for apportioning to the several parcels of land, that would be specially benefited by the establishment of this boulevard. the proportionate share of the special benefits conferred upon the several tracts of land. This special assessment, for benefits conferred, Avas for the purpose of
It is first contended by the appellants that the appraisers did not limit their appraisement of damages to the property that was described in ordinance No. 4,372, and that in a number of instances the property appraised was different from the property described in the ordinance1. A long list of alleged discrepancies is set forth in appellants’ brief. In several instances, where parts of lots were described in the ordinance and sought to he appropriated by the city, it is contended that the appraisers allowed in their estimate of damages for the Avhole of such lots or tracts, Avhen only a part thereof was taken. There is no evidence to support these contentions, except the report of the appraisers. A careful scrutiny of the said report leads to a conclusion contrary to that contended for by appellants. We quote from the report: “We do find that the damages to the OAvners of, and to those interested in, the
Appellants next contend that the report of the appraisers does not show that they made or entered an order fixing a time and place for a hearing, so that those interested might appear and make a showing to the appraisers as to the extent of the damages they would sustain by the taking of their property. Appellants also complain because, the record does not disclose that anyone was appointed by the appraisers to serve notices of the time and place of their meeting, as required by the ordinance, and also complain because the report of the appraisers fails to shoAV that a proper notice was served upon the parties whose land was sought to be taken. With reference to the first of these contentions, the only evidence in the record is that contained in the sworn return of the person serving the notices. It contains the following: “That he is special agent for the city of Omaha and is the party charged with the duty of serving notices for the city.” There is no evidence in the record that he was not appointed, nor is there any requirement of the statute or ordinance that makes it necessary that his appointment should be in writing, as contended by the appellants. As to the question of the appraisers making and entering an order fixing a time and place for the hearing, there is no evidence tending to show that such action was taken other than that, which would be presupposed by the form of the notice
Appellants further contend that the assessments made for the purpose of paying for the property taken by the city for boulevards were levied and imposed on the property of defendants in advance of the condemnation of the property described in the appropriation ordinances, and were therefore illegal and void. It is true that the levy ordinances, imposing the tax upon the property benefited, were passed previous to the actual occupancy of the property by the city for boulevard purposes. The substance of appellants’ contention in this respect seems to be that the city, not having actually paid the condemnation money, acquired no right to the property sought to be taken, and that the city, in going upon the property and taking possession of it before making payment, acquired no rights in the property, and that, not having acquired
There are two sections of the Omaha charter of 1897, relating to the exercise of eminent domain. Section 29, ch. 12u, Comp. St. 1897, is in part as folloAVs: “When-CArer it shall become necessary to appropriate private property for the use of the city for streets, alleys, avenues, seAvers, parkways, boulevards, public squares, gas Avorks, electric light plants, AAmtenvorks, or other purposes authorized by this act, and such appropriation shall be declared necessary by ordinance, the mayor, Avith the approval of the council, shall appoint three disinterested freeholders of the city, aaIio * * * shall assess the damages to the OAvners of the property and parties interested therein respectively taken by such appropriation. Such assessment shall be reported to the advisory board, * * * if the same shall be confirmed, the damages so assessed shall be paid to the Owners of such property, or deposit (id Avith the city treasurer subject to the order of such OAvners respectively, after which such property may at any time be taken for the use of the city.” This section contains general provisions for the exercise of the poAver of eminent domain by the cities of the metropolitan class. But section 101b of the same chapter provides: “In each city of the metropolitan class there shall be a board of park commissioners who shall have charge of all the parks and public grounds belonging to the city, with poAver to establish rules for the management, care and use of public parks, parkAvays and boulevards, and it shall be the duty of said board * * * to designate the lands, lots or grounds necessary to be used, purchased or appropriated for such purpose. And thereupon it shall be the duty of the mayor and council to take such action as may be neces
Appellants next contend that no adequate and safe fund was created by the city to pay for the lands appropriated, that the provisions made by special assessment for a fund out of which payments were to be made left it uncertain
A ision is made when the statute, authorizing a public municipal corporation to take private property for public uses, directs the regular ascertainment, without improper delay and in some legal mode, of . the damages sustained ]>v the owner, and gives him an unqualified right to a judgment for the amount of such damages, AAdiich can be enforced, that is, collected, by judicial process.” In the event that the fund provided should prove inadequate, resort may be had to a judgment against the city, and, Avhere a general judgment is entered against the city, all of its taxable property is liable to meet a levy to pay such judgment. That the city, or municipality, making the appropriation of private property is liable has been recognized by this court in a number of cases. Wead v. City of
Appellants contend that Hanscom Park, being a public park belonging to the city of Omaha and lying adjacent to the bouh'vard, should have been taxed as being specially benefited, and that the omission of this large tract of land, placing all of the burden of special benefit upon the private property OAvners, Avas a fraud upon them. This question has been settled by recent decisions of this court. In Herman v. City of Omaha, 75 Neb. 489, it AAras held that the municipality is not required to tax its oavu property for the purpose of creating funds Avith Avhich to pay for a public invproA'ement; in other Avords, that the city has no power or right to tax its own property. Hanscom Park aatus therefore not liable for any special benefit.
Complaint is also made because the tax for special benefits was not levied proportionately upon all the property benefited, and that in some cases the special assessment Avas grossly unjust, and so inequitable as to amount to a fraud upon the appellants. It is not possible to levy a tax of this kind, or in fact any tax, upon property, Avhereby absolute equality and exact justice is meted out to each OAvner. The question as to the value of a particular piece of property, or the relative values of several pieces of property, is largely a matter of opinion, and the question of special benefits that will be conferred upon several pieces of property cannot be adjusted Avith exact nicety. It is not expected, nor required, that men with only finite powers avüI be able to perform their duties with the wisdom of Infinity. It is sufficient if the taxes levied against the various parcels of land are so levied that they cannot be said to be grossly inequitable or unjust, and that each parcel bears approximately its just share of the
Appellants also contend that the mayor and council had no power to levy an assessment for special benefits upon any property other than that abutting upon, or adjacent to, the boulevard. We think that section 1016 of the statute above referred to is sufficient answer to this contention. It provides that special assessments may be levied against, such real estate as may be specially benefited by reason of the appropriation. It does not limit it to the property which abuts upon, or is adjacent to, the boulevard. The only limitation is that the property be specially benefited.
Appellants claim that the city never obtained possession of certain portions of the property sought to be appropriated, and to support this contention they offered evidence to the effect that there is a house upon one of the lots, and that the lots to the north of this house in the same block, which were included in the lands condemned, have not been graded for boulevard purposes. The evidence does not show that any person is occupying this house or these lots, and there is nothing to show that any person is claiming title thereto adverse to the city. The evidence falls far short of showing that the city never obtained title or possession of the property. It might be that part of these lots have never been graded for boulevard purposes, but this would not deprive the city of its title to the lots, nor affect its right to levy the special assessment to pay for the property appropriated. The special assessments were not made for the purpose of grading and placing the property in condition to be used
Appellants also contend that, because a considerable number of the owners of the property appropriated have not yet received their pay therefor, and because warrants drawn by the city for the payment for the property have not been delivered, no title was acquired to the property, and no special assessment could be made to pay for the same. It is not made to appear wherein the failure of the property owners to receive or cash their warrants could be material. If a safe and adequate fund has been provided, this is all that is necessary. If the property owners do not choose to accept the payment when the same has been provided, that is their affair, and could constitute no defense to the special assessment made to pay for the property.
Numerous rulings of the trial court on the admission and exclusion of evidence are complained of. The appellants have not pointed out to us wherein they have been prejudiced by any of these rulings, and from an examination of them no error is apparent.
After a careful consideration of all the questions raised by the appellants, we are convinced that the decree of the district court is right and should be affirmed.
By the Court: For the reasons given in the foregoing-opinion, the judgment of the district court is
Affirmed.