Village of Winside v. Benshoof

90 Neb. 131 | Neb. | 1911

Sedgwick, J.

The plaintiff, the village of Winside, brought this action in the district court for Wayne county to enjoin the defendant from inclosing with fence certain tracts of land which the plaintiff alleged Avere parts of the public streets in the village. Upon the trial the court entered a decree for plaintiff as prayed and the defendant has appealed.

The appeal was docketed in this court before the 7th day of April, 1911, and an abstract has been filed under rule 20 of this court (89 Neb. vii) pursuant to the recent statute. Code, secs. 675f, 675g. This abstract is not as complete as it might be, and the parties in briefing their cause have apparently overlooked that part of rule 16, which is as follows: “The abstract must be sufficient to fully present every error and exception relied upon, and it will be taken to be accurate and sufficient for a full understanding of .the questions presented for decision, unless the opposite party shall file a further abstract, making necessary corrections or additions. Such further abstract may be filed if the original abstract is incomplete or inaccurate in any substantial part.” No further abstract has been filed. It appears from the abstract that the streets in question are part of Bressler & Patterson’s second addition to Winside, and are within and a part of the village. It is the duty of the village to keep its streets open for public use. It devolved upon the defendant to show his right to fence in these streets. He has failed to do so. The defendant claimed to own the whole of certain blocks in that addition, and alleges that he has vacated thpse blocks. There is no evidence in the abstract as to who platted this addition, nor how this defendant became the owner of these blocks. The defendant fails to bring himself within the provision of the statute. Comp. St. 1909, ch. 14, art. I, sec. 110, which is construed in Hart v. Village of Ainsworth, 89 Neb. 418. It appears from the abstract that the defendant claimed that he had leased these tracts of land which are in dispute from the- village, and there appears to be some evidence to that effect, and also conflicting evidence. Upon this evidence the court found the issues in favor of the plaintiff, and there is not sufficient shown to enable us to say that the defendant has any right to obstruct these streets.

The issues that were tried are not clearly shown in the abstract, and all presumptions are in favor of the judgment of the district court, which is therefore

Affirmed.