Ackerman v. Thummel

• Decision Date: 17 April 1894
• Docket Number: 5580
• Citation: Ackerman v. Thummel, 40 Neb. 95, 58 N.W. 738 (Neb. 1894)
• Parties: DAVID ACKERMAN ET AL. v. GEORGE H. THUMMEL
• Court: Nebraska Supreme Court

58 N.W. 738

40 Neb. 95

DAVID ACKERMAN ET AL. v. GEORGE H. THUMMEL

No. 5580

Supreme Court of Nebraska

April 17, 1894

ERROR from the district court of Hall county. Tried below before HARRISON, J.

AFFIRMED.

Charles G. Ryan and W. H. Thompson, for plaintiffs in error, cited Stuart v. Palmer, 74 N.Y. 190; People v O'Brien, 111 N.Y. 1; South Platte Land Co. v Buffalo County, 7 Neb. 257; State v. Ryan, 70 Wis. 676; Harwood v. Inhabitants of North Brookfield, 130 Mass. 561.

W. H. Platt and Abbott & Caldwell, contra, cited: Whitcomb v. Reed, 24 Neb. 50; People v. Flagg, 46 N.Y. 401; Sangamon County v. City of Springfield, 63 Ill. 66; Dennis v. Maynard, 15 Ill. 477; People v. Power, 25 Ill. 187; State v. Shawnee County, 28 Kan. 431; Normand v. Otoe County, 8 Neb. 18; Johnson v. Hahn, 4 Neb. 139; Touzalin v. City of Omaha, 25 Neb. 817; State v. Nemaha County, 10 Neb. 32; Doody v. Vaughn, 7 Neb. 28.

NORVAL, C. J. HARRISON, J., took no part in the opinion.

OPINION

NORVAL, C. J.

This was an action brought by the defendant in error, a taxpayer of the city of Grand Island, to enjoin David Ackerman, county clerk of Hall county, from issuing or delivering to Henry E. Timkie a warrant on the general fund of said county for the sum of $ 400, awarded to said Timkie by the county board as damages sustained by the location of a public road over lands owned by him in Washington township in said county, and to restrain William Cornelius, the county treasurer, from paying said warrant. A general demurrer to the petition was overruled, and the defendants declining to further plead, and electing to stand on the demurrer, a perpetual injunction was granted by the court as prayed.

The facts set up in the petition, briefly stated, are these: The county of Hall is under township organization, and is divided in towns, one of which is called Washington township. In January, 1891, the county board of Hall county made an order establishing a public highway within the limits of Washington township, and not on any town line, which road passed over the real estate of Henry E. Timkie, one of the plaintiffs in error. Appraisers were duly appointed to ascertain and fix the amount of damages caused by reason of the location of the road, who appraised the damages sustained by Timkie at $ 300. Subsequently, in November, 1891, the county board fixed and assessed the damages incurred by said Timkie at $ 400, and said board, on the 15th day of January, 1892, by resolution, instructed the county clerk to draw a warrant upon the county general fund for said sum in favor of said Timkie. No petition has ever been presented by Washington township, or any one in its behalf, to the county board praying for the allowance of any sum by the county to aid in bearing the expense of opening and constructing said road, and the road taxes of said township, under the usual levy for road purposes, would be sufficient in any one year to pay all damages sustained by reason of the location of said road, as well as for all labor and material necessary to construct the same. The assessed valuation of the property of the county for the year 1891 was $ 2,766,162, and the assessed valuation of the property of the city of Grand Island for said year was $ 1,342,240.

No question is raised as to the validity of the proceedings of the county board relating to the establishing of the road and the appraising of the damages sustained by Timkie by reason thereof. The sole question presented for decision is whether Hall county, or Washington township, or the road district in said township, should pay the damages resulting from locating and opening the highway in question.

Section 1 of chapter 78 gives to the county board the general supervision over public roads of the county, and the power to establish and maintain them.

Sections 2 and 3 define public highways and the width thereof, while other sections of the same chapter regulate the proceedings which shall govern the establishment, vacation, or alteration of public roads, and provide the procedure for ascertaining the damages of the land-owner.

Sections 39 to 43, inclusive, provide for an appeal to the district court from the assessment of damages, and regulate the proceedings on appeal.

Section 42 declares: "The amount of damages the claimant is entitled to shall be ascertained by said court in the same manner as in actions by ordinary proceedings, and the amount so ascertained shall be entered of record, but no judgment shall be rendered therefor. The amount thus ascertained shall be certified by the clerk of the county board, who shall thereafter proceed as if such amount had been by them allowed the claimant as damages."

Section 53 authorizes the county board to divide the county into road districts, and to change to boundaries thereof.

Sections 76 and 91 read as follows:

"Sec 76. In counties not under township organization, one-half of all moneys paid into the county treasury from the several road districts in discharge of road tax shall constitute a county road fund, which shall be at the disposal of the county commissioners for the general benefit of the county, for road purposes; the other half of all the moneys paid into the county treasury from the several road districts, in discharge of road tax, and all money paid in discharge of labor tax shall constitute a district road fund, which shall be paid by the county treasurer to the overseer of the road district from which it was collected, and expended by him only for the following purposes: First--For the construction and repair of bridges and culverts, and making fire guards along the line of roads. Second--For the payment of damages of the right of [way of] any public road. Third--For the payment of wages of overseers, and for the expense of procuring the necessary guide-boards. Fourth--For the payment of the wages of commissioners of roads, surveyor, chainmen, and other persons engaged in locating or altering any county road, if the road be finally established or altered as hereinbefore provided. Fifth--For work and repairs upon road. Provided, That the county commissioners of counties not under township organization may levy the same rate of road tax upon the property within any incorporated city of the metropolitan class and cities of the first class as is levied upon the property situated within the several road districts, and all moneys paid into the county treasury in discharge of road tax levied upon property within the corporate limits of any such city shall constitute a part of the general road fund of the county, and be subject to the disposal of the county commissioners for the general benefit of the county and city, one-half of which shall go to the county for road purposes and one-half to the council of said cities to be used for road purposes.

"Sec 91. In counties under township organization all moneys paid to the township treasurer in discharge of township road tax, and all money paid in discharge of labor tax, shall constitute a township road fund, which fund shall be divided as follows: All of said fund shall be held by the township treasurer, subject to the order of the town board, excepting an amount, not to exceed one-fifth of the entire fund aforesaid, shall be paid by the town treasurer to the overseer of the district from which such tax is collected. The amount under the control of the town board as aforesaid shall be expended for the general benefit of the township, for road and bridge purposes. The amount under the control of the overseer shall be applied within his district as follows: First--For the construction and...