Batty s v. City of Hastings

• Decision Date: 20 November 1901
• Docket Number: 11,671
• Citation: 88 N.W. 139,63 Neb. 26
• Parties: ROBERT A. BATTY ET AL. APPELLEES, v. CITY OF HASTINGS ET AL. APPELLANTS
• Court: Nebraska Supreme Court

88 N.W. 139

63 Neb. 26

ROBERT A. BATTY ET AL. APPELLEES, v. CITY OF HASTINGS ET AL. APPELLANTS

No. 11,671

Supreme Court of Nebraska

November 20, 1901

APPEAL from the district court for Adams county. Heard below before ADAMS, J. Affirmed.

AFFIRMED.

L. J Capps, for appellants.

J. B Cessna and Batty & Dungan, contra.

W. C Lambert and James H. Adams, amici curiae.

Argued orally by Capps for appellants; by Cessna, contra.

POUND, C. SEDGWICK and OLDHAM, CC. concur.

OPINION

POUND, C.

In 1892 the city council of Hastings, pursuant to a petition purporting to be signed by the owners of a majority in front-feet of the property abutting upon certain streets, created a paving district and, after a proposition had been duly submitted and voted upon and bonds issued for paving the intersections, proceeded in November, 1894, to assess the cost of paving said district upon the property abutting on the several streets therein. This suit was brought by some thirty-eight property owners in said district to have such assessment declared invalid, to enjoin collection of the same and to remove the clouds upon their several titles by reason thereof. A decree was rendered as prayed for, from which this appeal has been taken.

Most of the questions raised have been passed on heretofore in the many cases of this character which have been brought to this court, and we have only to apply the principles therein settled to the circumstances of this particular controversy. The one point not previously passed on in this connection, or requiring independent consideration, arises upon defendants' plea of the statute of limitations. The assessment was levied on November 9, 1894, and, under the terms of the statute became, if valid, a lien from and after that date. Suit was begun on November 14, 1898. It is argued that plaintiffs' cause of action accrued when the assessment was levied and the cloud created, and that, as the four years limited by the Code for commencing actions not otherwise provided for had elapsed, the action is not maintainable. In Eayrs v. Nason, 54 Neb. 143, 74 N.W. 408, the application of the statute of limitations to suits to quiet title was considered, and the court said: "If a defendant is in the adverse possession of a plaintiff's real estate, claiming title thereto, plaintiff's cause of action accrues when such adverse possession begins. If the defendant be out of possession, asserting title or claim to the real estate, the cause of action accrues when such claim or title is asserted. If the conveyance, instrument, or thing on which the assertion of title is based is of record, perhaps the cause of action accrues when such conveyance, instrument or thing is placed of record." If such be a complete statement of the rule, it may well be argued that plaintiff's cause of action to remove the cloud accrued when the assessment was levied, became of record and appeared and was asserted as a lien upon the property in the district. But it is not clear that the language quoted was intended to lay down a complete rule. The cloud sought to be removed was an unrecorded deed and the court merely pointed out that in any event the cause of action would not accrue till the deed was recorded or title was asserted thereunder. Pleasants v. Blodgett, 39 Neb. 741, 744, 58 N.W. 423. Where a plaintiff out of possession brings the statutory action to quiet title, it is undoubtedly true that the statute begins to run from the time when defendant's possession became adverse. But, while a cause of action clearly accrues to the owner of real property in possession thereof whenever a cloud upon his title is created or an adverse title asserted, we do not think it necessarily follows that such cause of action accrues then once for all, so as to start the statute of limitations from that date. A cloud upon a title must always continue to operate as such during the period of its existence, and, as its effect upon the title is continuing, the cause of action resting on the right of the owner to have it removed would seem to be continuing also, and to be available at all times while the cloud remains. Miner v. Beekman, 50 N.Y. 337. "The cause of action is not the creation of the cloud, but its existence, its effect upon the title of the owner, and his right to have it removed." Schoener v. Lissauer, 107 N.Y. 111, 117, 13 N.E. 741. Hence there would seem good ground for holding that lapse of time after the creation of a cloud upon a title will not bar an action by an owner in possession to have it removed. Quinn v. Kellogg, 4 Colo.App. 157, 35 P. 49; American Emigrant Co. v. Fuller, 83 Iowa 599, 50 N.W. 48; Hendrickson v. Boreing, 32 S.W. 278; Wagner v. Law, 3 Wash. 500, 28 P. 1109. The contrary view has been taken in Indiana (Eve v. Louis, 91 Ind. 457), and perhaps by other courts, but we prefer to follow the rule established in New York, and to hold that where the plaintiff is in possession, he may sue to remove the cloud at any time during its existence.

The contention of defendants that several of the plaintiffs are in no position to maintain this action because they owned no property in the district at the time the assessment was levied, but subsequently purchased the tracts in respect of which they now sue, is settled adversely by the case of Lasbury v. McCague, 56 Neb. 220, 76 N.W. 862. Nor do we see how it matters that several of these purchasers took "subject to incumbrances." Had they taken subject to this particular lien, there would be ground for asserting an estoppel. But "incumbrances" meant valid incumbrances, and the covenants and recitals in their deeds did not preclude them from insisting that the assessment in question had no legal standing as a charge upon the property. An estoppel is also claimed by reason of the fact that a number of the plaintiffs signed the petition for the establishment of the district. This of itself is not enough. Those who signed the petition had a right to presume that the city would act legally. It can not say that it relied on the signatures of plaintiffs to an invalid petition when plaintiffs intended to sign, and had every reason to suppose they were signing, a valid petition, which would not be acted upon unless it received the requisite number of signatures; and had no intention of binding themselves in any other event. They asked the city to proceed lawfully. Such request does not estop them from objecting when the city has proceeded without warrant of law. The same observation may be made with reference to the further pleas of estoppel by reason of acts alleged to have been done by the city in reliance upon the petition and of laches by reason of delay in bringing this action. It might, perhaps, be inferred from Harmon v. City of Omaha, 53 Neb. 164, 73 N.W. 671, and authorities there cited, that mere delay would sometimes bar an action of this nature. But the question was squarely presented in Casey v. County of Burt, 59 Neb. 624, 81 N.W. 851, and it was held that where the assessment is void there is no duty imposed upon property owners to act promptly; so that in such case delay, of itself, does not constitute laches. In the case at bar no circumstance appears beyond lapse of time. The acts alleged to have been done by the city in reliance upon the petition, namely, the submission of a proposition for paving the intersections and the issuance of bonds to pay the cost of such paving, were done before the levy of...