Abboud v. Lakeview, Inc.

Citation237 Neb. 326,466 N.W.2d 442
Decision Date01 March 1991
Docket NumberNo. 88-903,88-903
PartiesFred ABBOUD, Individually and on Behalf of Others Similarly Situated, Appellant, v. LAKEVIEW, INC., a Nebraska Corporation, and City of Ralston, Nebraska, a Municipal Corporation, Appellees.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Injunction: Equity. An action for injunction sounds in equity.

2. Equity: Appeal and Error. In an appeal of an equity action, this court tries the factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court; provided that where credible evidence is in conflict on a material issue of fact, we consider and may give weight to the fact the trial judge heard and observed the witnesses and accepted one version of the facts over another.

3. Injunction: Proof. A party seeking an injunction must establish by a preponderance of the evidence every fact necessary to entitle the claimant to relief.

4. Injunction. An injunction will not be issued unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.

5. Municipal Corporations: Property: Bonds: Sales: Legislature. When city parkland is purchased with voter-approved bond funds, the property is held in trust for the public and may only be sold by the city if specifically authorized to do so by the Legislature and if the land is no longer needed by the city.

6. Municipal Corporations: Property: Sales. If property never existed as a park or was abandoned as a park by a city, the city is free to sell the land under its general statutory power to buy and sell property.

7. Public Officers and Employees: Municipal Corporations: Contracts: Conflict of Interest. A city officer who is "interested" in a contract between the city and an entity in which he has a financial interest may cure any conflict of interest if the interested officer (1) makes a declaration on the record to the governmental body responsible for approving the contract regarding the nature and extent of his or her interest, prior to official consideration of the contract; (2) does not vote on the matter of granting the contract, except that if the number of members of the board declaring an interest in the contract would prevent the board, with all members present, from securing a quorum on the issue, then all members may vote on the matter; and (3) does not act for the city or village which is party to the contract as to inspection or performance under the contract in which he or she has an interest.

8. Municipal Corporations: Appeal and Error: Words and Phrases. A city council is a "tribunal," under the definition of Neb.Rev.Stat. § 25-1901 (Reissue 1985), whose decision can be vacated, modified, or reversed by a court of proper jurisdiction.

9. Municipal Corporations: Appeal and Error. A city council exercises judicial functions in determining questions of fact, and if error proceedings are not filed to review the decision, it becomes final.

10. Municipal Corporations: Appeal and Error. If no statutory right to appeal from the decision of a city council exists, then a petition in error is the only remedy afforded the plaintiff.

11. Municipal Corporations: Pleadings: Ordinances: Appeal and Error. In order to obtain review of a city council's decision, the petitioner must file in the reviewing court a transcript containing the order of the city council that contains the ordinances relied upon by the city council, as well as sufficient evidence for the reviewing court to determine whether the council's decision was correct.

Chris Abboud, Ralston, for appellant.

Steven J. Riekes, of Richards, Riekes, Brown & Zabin, P.C., Omaha, for appellee Lakeview, Inc.

HASTINGS, C.J., and BOSLAUGH, WHITE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

WHITE, Justice.

This is the second appearance of this case before this court. Abboud's original action was for declaratory and injunctive relief against the defendants-appellees, Lakeview, Inc., and the City of Ralston (City). Abboud prayed for a permanent injunction prohibiting the sale of real property from the City to Lakeview, for a permanent injunction preventing the City from selling or using the property for anything This action concerns real property, commonly referred to as the "Seymour Lakebed," on which Lakeview, under a lease with the City, built and maintained a golf course. The City subsequently sold the land to Lakeview under a purchase option in the lease. It is this sale that Abboud seeks to enjoin. Lakeview also leased and later purchased under the lease option an adjoining piece of property that was not part of the lakebed property we are concerned with in this action. The golf course is built on both pieces of property. The boundaries of each piece of property are depicted in the diagram below. Abboud is a resident and former city councilman of Ralston. He also owns property located directly across the street from the golf course. This court has already decided that Abboud has standing to bring suit against the City. See Abboud, supra.

other than a park, and for a finding that a 1967 lease between the City and Lakeview was void. The district court sustained the defendants-appellees' demurrer, and Abboud appealed to this court. This court reversed and remanded the action for further proceedings. See Abboud v. Lakeview, Inc., 223 Neb. 568, 391 N.W.2d 575 (1986). On remand the district court denied Abboud relief, and this appeal followed.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

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On May 8, 1937, the Cudahy Packing Company, for consideration, conveyed by warranty deed to the City (then a village) the lakebed property. The grant of the The testimony is conflicting as to the uses made of the lakebed property prior to construction of the golf course. Eldon Murray, the City's maintenance superintendent for 18 years and a resident of Ralston since 1949, testified that the property was not a park and was not treated as a park during that period. He stated that much of the property was marshy and full of mosquitoes and rodents. Murray testified that during his years as the maintenance superintendent there were no bathroom facilities, water fountains, improved trails, picnic tables, or flowers present on the property. A former mayor of Ralston, Wendell Kronberg, testified that the property was abandoned, was used as a dump by residents of Ralston, and was an "eyesore." According to the May 20, 1952, city council minutes, the councilmen voted to permit Don Fucinaro to raise corn on the lakebed.

                property was in the form of a fee simple subject to condition subsequent.  The land, by the terms of the deed, was restricted to park or public recreation area use and subject to a right of reentry by the grantor in the event the property was ever used for a different purpose.  Cudahy Packing thus held a future interest called a right of reentry.  On October 27, 1944, Cudahy sold this interest (consisting of the right of reentry) to Mr. and Mrs. Fred Eipperle.  On April 1, 1947, the voters of the City authorized the board of trustees to issue a general obligation bond in the amount of $5,000 to purchase the right of reentry from the Eipperles.  The minutes of the Ralston City Council dated February 4, 1947, refer to the bond issue as "Park Bonds for purchasing land for park purposes."   The minutes also state that the purpose for obtaining the Eipperles' interest was so that a dry lake on the property could be revived.  Additionally, the minutes note that Fred Eipperle had been attempting for several months to cause the land to revert back to him, leaving the City without any interest in the land.  The City subsequently obtained the Eipperles' title to the land by quitclaim deed.  Because the City then owned both the present possessory and future interests, under the doctrine of merger the two estates became a fee simple absolute.  See Abboud, supra.   Therefore, the restriction in the deed from Cudahy Packing no longer existed, and the City owned the land in fee simple free of restriction.  Id
                

In support of his contention that the property was used as a park, Fred Abboud testified that his sons played football in the area and that he observed the area being used for fishing, hiking, and camping. Fern Taylor, a longtime resident of Ralston, testified that children ice-skated on the lakebed when there was water in it and that men trained hunting dogs in the area. Hugh Hamilton, a former city councilman and resident of Ralston, testified that in the 1950's water was pumped from Big Papillion Creek into the lakebed and that children swam and people fished there when the lake was full. He also testified as to the existence of a clubhouse on the property that was later torn down.

There is evidence in the record that the City did expend a small amount of money on the property prior to 1967. Murray, the maintenance superintendent, testified that his department mowed parts of the property when it was able to and that the area was sprayed for mosquitoes. The city council minutes during the years 1948 and 1949 mention plans for the installation of pumping equipment for the lake, which at that time contained water. The minutes also mentioned rental of the clubhouse to various organizations. There is no evidence in the record, however, that the City ever attempted to permanently revive the lake or develop the property into a park. Pictures of the property taken prior to the development of the golf course depict the land as overgrown and left primarily in its natural state. The City did not formally dedicate the land as a park or improve the land with the usual park amenities such as parking, landscaping, or bathroom facilities. The land remained in an undeveloped state until 1967, when the City entered into the lease with Lakeview.

Prior to and after entering into the lease of the property with Lakeview, the City sold...

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