Casey v. County of Burt

• Decision Date: 09 February 1900
• Docket Number: 11,025
• Citation: 81 N.W. 851,59 Neb. 624
• Parties: MARY E. CASEY ET AL. APPELLEES, v. COUNTY OF BURT ET AL. APPELLANTS
• Court: Nebraska Supreme Court

81 N.W. 851

59 Neb. 624

MARY E. CASEY ET AL. APPELLEES, v. COUNTY OF BURT ET AL. APPELLANTS

No. 11,025

Supreme Court of Nebraska

February 9, 1900

ERROR from the district court of Burt county. Tried below before BAKER, J. Affirmed.

AFFIRMED.

H. H Bowes and W. G. Sears, for appellants.

H. W Pennock, contra.

OPINION

NORVAL, C. J.

In 1885 one L. D. Peterson, with others, filed in the office of the county clerk of Burt county a petition praying for the establishment of a ditch in said county, under the provisions of article 1, chapter 89, of the Compiled Statutes, 1897. Accompanying said petition was a bond, a copy of which follows:

"Know all men by these presents, that we, Lewis Peterson and J. P Morden, all of the county of Burt, state of Nebraska, are held and firmly bound unto the county of Burt in the state of Nebraska, in the sum of two hundred dollars lawful money of the United States, for the payment of which well and truly to be made, we do jointly and severally bind ourselves and our lawful representatives. The conditions of the above obligation are such, that, whereas Lewis Peterson et al did on the 26th day of May A. D. 1885, file a certain petition with the county clerk of Burt county, Nebraska, praying that the county commissioners of said county would cause a view and the location of a ditch running partly through township 21, 22, and 23, all in range 11, Burt county, Nebraska.

"Now, if upon view of said route in said petition described the said commissioners shall find in favor of the location of said ditch, then this obligation shall be void, otherwise to be and remain in full force and effect.

"Dated this 2d day of June A. D. 1885.

"L. D. PETERSON.

"J. P. MORDEN."

No other bond was filed in said proceeding. After the filing of said petition and bond, other steps prescribed in said chapter 89 were taken, and said ditch was established and completed, the same being extended, however, more than 160 rods beyond one of the termini designated in the petition, and assessments were levied upon the land affected thereby. Among the owners of land so affected was one Jacob Darst. Afterwards, title to this land vested in Mary E. Casey, Laura D. Barnard, Lizzie Darst and Allora Darst, who commenced this suit in said Burt county, seeking to enjoin the treasurer thereof from collecting the tax so imposed, and to remove the cloud of such levy from the title to said land on the ground that said bond is not in conformity with the provisions of section 4 of article 1 of said chapter 89; that the commissioners changed the route of the ditch more than said statute permitted; and that the provisions of said chapter are unconstitutional and void. On the trial of the case below, a decree was rendered in favor of plaintiffs as prayed in their petition, and the defendants appeal therefrom.

If any of the objections urged against said bond in the lower court are valid to the extent that such bond must be declared to be void, the decree must be affirmed. We will, therefore proceed to examine some of such objections. In Dakota County v. Cheney, 22 Neb. 437, 35 N.W. 211, this court decided that the jurisdictional steps necessary in a proceeding to establish and construct a ditch and levy a tax under the provisions of said chapter are as follows: First, a petition; second, a bond; third, that the proposed improvement is a necessity, and will be conductive to the convenience, health and welfare of the public; fourth, statutory notice. A bond is, therefore, a jurisdictional prerequisite; and if the bond in question is void, the county commissioners were without jurisdiction to levy such tax, and all their acts in such proceeding were void. Under section 4 of said article and chapter, a petition for such improvement...