City of McCook v. Red Willow County
| Decision Date | 08 October 1937 |
| Docket Number | 29980. |
| Citation | 275 N.W. 396,133 Neb. 380 |
| Parties | CITY OF MCCOOK v. RED WILLOW COUNTY. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A highway or public way which a city has the power to pave, and to levy a special assessment to pay for the cost thereof under section 4283, Comp.St.1922, chapter 135, Laws 1923, is a public highway within the corporate limits of the city as distinguished from a street.
2. " To constitute implied dedication by the owner of land of its use for a public highway, there must be present the intent to appropriate the land for public use. The intent may, however, be expressed in the visible conduct and open acts of the owner. If the acts are such as would lead ordinarily prudent men to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation.
In such case the facts and circumstances must be such as indicate an unequivocal intent to devote the strip of land to the public use." Burk v. Diers, 102 Neb. 721, 169 N.W 263.
3. Carpenter v. Schnerle, 91 Neb. 806, 137 N.W. 850.
4. The facts set out in the opinion held not to show such an intent to dedicate, and accept by the public, as is necessary to establish a public highway by dedication.
5. Under the facts set out in the opinion, held, that the road paved and improved by the plaintiff upon land owned by the defendant, used for county fair ground purposes, was not a public highway which the city under its charter was authorized to pave and improve, and to levy a special assessment to pay for such improvement, and the special assessment levied therefor was unauthorized and void.
6. Where special assessments against property to pay costs of paving are void, knowledge of the proceedings and of the construction of the improvement will not estop the owner from avoiding liability therefor, and they cannot be enforced solely on the ground of the benefits of the improvements to the owners of abutting lots or lands.
Appeal from District Court, Red Willow County; Eldred, Judge.
Action by the City of McCook, Neb., against Red Willow County, Neb. Judgment for defendant, and plaintiff appeals.
Affirmed.
Butler & James, of Cambridge, for appellant.
John F. Cordeal and Charles E. McCarl, both of McCook, for appellee.
Heard before ROSE, DAY, PAINE, and CARTER, JJ., and HASTINGS, MUNDAY, and RINE, District Judges.
This action was brought in the district court for Red Willow county, Nebraska, by the city of McCook against the county of Red Willow, to recover certain installments of pavement assessments levied against the lands of the defendant county. The court found the issues generally in favor of the defendant and entered judgment dismissing the cause. From that judgment the city prosecutes this appeal. The facts are not in dispute.
In the year 1920 defendant purchased 120 acres of land for a county fair ground, approximately 40 acres of which was within the corporate limits of plaintiff city. During that year the county fair board had a part of the grounds located within the city inclosed by a fence. Within the inclosure a grandstand and other buildings were erected, and a race track was laid out, and in this inclosure county fairs were held. A gate was installed along the east side of the inclosure directly opposite the west terminus of O street in said city. This gate is the principal entrance to the inclosure. O street, the most northerly street in the city, extends west from Main street a distance of 3 blocks, its west end being coterminous with the west side of Third street. In 1920 the first county fair was held upon these fair grounds. In 1921 the county constructed a road from the west terminus of O street west to the main gate, a distance of 750 feet. From the time of its construction the road was used by those attending the county fair in going to and in leaving the fair grounds. It was not used otherwise by the public generally. The road to the point of entrance into the fair grounds was open at all times, but the gate was kept locked, except when a fair was in progress. When fairs were to be held the road was maintained by the county and the county fair board so as to make it more available for use for those attending a fair.
In 1925 the city authorities created a paving district known as " Paving District No. 8," and included in the district that part of the fair grounds east of the inclosure upon which said fair ground road was located; also included in the district, along with some other streets and alleys of the city, was that part of O street from the alley west of First street to Third street. O street runs east and west, and Third street runs north and south. Third street is a part of Highway No. 183, which extends from the northern terminus of Third street to the northeast corner of the fair grounds, thence west along the north side of said inclosure. The city, as a part of its program for paving its streets and alleys within the paving district, paved that part of O street from the alley west of First street west to the west side of Third street, and from that point constructed pavement 30 feet wide on the road on the fair grounds extending west therefrom for a length of about 520 feet, and terminating within said district a short distance east of the gate maintained by the county, or fair board, as an entrance to the inclosure. Neither Third street nor Highway No. 183 was paved, except that part at the intersection of O street and Third street.
Two of the members of the county board and the secretary of the fair board knew of the creation of the paving district, and knew of the improvement being made on the road in question, and made no objection thereto.
Upon completion of the improvement, notice, as required by law, was given of the time and place a hearing would be held by the city council for the purpose of levying special assessments on lots and parcels of land within the district abutting upon or adjacent to any highway, street, avenue, or alley specially benefited thereby in proportion to such benefits, to pay the cost of such improvements. At the time and place set for the hearing no one appeared in behalf of the county to protest or object to the levying of an assessment against the county for benefits derived by it, and the city council found that the land of the county within the district had received benefits in the sum of $4,507.69, and levied an assessment therefor payable in installments, none of which has been paid.
In this action recovery is sought of one-half of the installments, the remaining installments having been barred by the statute of limitations.
Section 4283, Comp.St.1922, chapter 135, Laws 1923, under which the city acted, gave the city the right ...
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