Bonner v. City of Imperial
| Decision Date | 12 May 1948 |
| Docket Number | 32379. |
| Citation | 32 N.W.2d 267,149 Neb. 721 |
| Parties | BONNER et al. v. CITY OF IMPERIAL et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. When a street improvement district is created agreeable to the provisions of section 17-511, R.S.1943, and abutting real estate is held in joint tenancy by a husband and wife who are residents, each has the right to act separately and independently of each other with regard to the objection to such improvement provided for in said section.
2. In the case of objection by one such joint tenant in which the other has not joined the question of whether the one objecting represents the entire property and his joint tenant, or if such one is to be considered as objecting and the other not doing so, is one of fact.
3. In the case of objection by one such joint tenant in which the other has not joined a presumption arises that the one objecting represents the entire property and his joint tenant and this presumption obtains unless the contrary is made to appear.
Beatty Clarke & Murphy and Earl E. Morgan, all of North Platte and Colfer, Russell & Colfer, of McCook, for appellants.
Henry W. Curtis, of Imperial, for appellees.
Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.
This is an action by plaintiffs, appellants here, against the defendants, City of Imperioal, a municipal corporation, its mayor, and the members of its city council, appellees here to enjoin the said defendants from letting a contract for construction work in a certain improvement district in the City of Imperial and from levying an assessment on lots or parcels of land abutting or adjacent to the streets and alleys to aid in defraying the costs of such proposed improvements.
The action was tried to the district court and injunction was denied by the decree of that court. From the decree the plaintiffs have appealed.
Pertinent facts constituting background of the action are that on April 14, 1947, the city council duly passed, in conformity with law (section 17-511, R.S.1943) an ordinance creating a street improvement district providing for the grading, draining, curbing, and guttering of certain streets in the district. The ordinance was duly published. The district was denominated Street Improvement District No. 2. After the passage and publication of the ordinance the city on April 19, 1947, in accordance with section 17-511, R.S.1943, published notice of the creation of the district. The pertinent part of this section of the statute is the following:
It will be observed that this section provides that if a majority of the resident owners of property directly abutting on the street to be improved shall within 20 days after the first publication of notice of the creation of the district file with the city clerk written objections to such creation the improvement shall not be made but that the ordinance shall be repealed.
There is no question in this case as to the regularity of any step in the proceedings. The only question is that of whether or not within the meaning of law a majority of the resident abutting owners filed objection to the creation of the district.
The facts in this respect are that 83 resident owners filed written objection. The city council concluded that this was not a majority. It concluded that there were 101 resident owners who did not file objections. This number was made up of 71 resident owners whose property stood in their names alone. The remaining 30 were wives of men who had filed objections. In each such instance the wife was a joint tenant with the husband. These wives had not filed objections nor had they joined in the objections filed by their husbands.
The city council took the position, without inquiry to ascertain the facts with regard to the intention of these wives, that they were resident owners as well as their husbands and counted them among those not objecting.
The theory of the plaintiffs is that the husband in each of these instances must be considered as a resident owner and also as representative of his joint tenant wife and that in his objection he represented the full ownership of the property.
If the viewpoint of plaintiffs is to be accepted then the number objecting was 83 and the number not objecting 71.
The district court found on this controverted question in favor of defendants and entered decree accordingly. It is from this finding and decree that the plaintiffs have appealed.
It will be observed that the right of objection is by statute extended equally to all resident owners without any qualification or limitation as to the quality or extent of ownership.
Attention has been directed to decisions of this and other courts and to statements of texts bearing on the question of the right of a cotenant to represent the...
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Easley v. City of Lincoln
...between those who have full and complete fee simple ownership as against those who do not was also followed in Bonner v. City of Imperial, 149 Neb. 721, 32 N.W.2d 267 (1948), wherein we held, citing with approval Chan, supra, that one coowner of a parcel of real estate could object to impro......