City of Seward v. Conroy

• Citation: 33 Neb. 430,50 N.W. 329
• Parties: CITY OF SEWARD v. CONROY ET AL.
• Decision Date: 18 November 1891
• Court: Nebraska Supreme Court

33 Neb. 430

50 N.W. 329

CITY OF SEWARD

v.CONROY ET AL.

Supreme Court of Nebraska.

Nov. 18, 1891.

Syllabus by the Court.

1. Where a city of the second class desires to annex contiguous territory upon the ground of material benefits and advantages to be derived from such annexation, the first step in the proceeding is the adoption by the city council of a resolution to annex such territory by a two-thirds vote of all the members-elect of such council, and without this the district court has no authority in the premises.

2. Where the record which purports to contain all the evidence fails to show that a certain resolution on which the action is based was introduced in evidence, or its admission waived, the court, in considering the case, must be governed by the record.

Appeal from district court, Seward county; HARRISON, Judge.

Action by the city of Seward against John Conroy and others for the purpose of extending the limits of the city by taking in lands belonging to defendants. Decree for plaintiff. Defendants appeal. Reversed and dismissed.Norval Bros. & Lowley, for appellants.

Ed P. Smith and D. C. McKillip, for appellee.

MAXWELL, J.

This action was brought in the district court of Seward county by the plaintiff against the defendants named, and a large number of other owners of real estate near the city of Seward, for the purpose of extending the limits of the city by taking in lands owned by the defendants. It is alleged in the petition, in substance, that Seward is, and at the time stated was, a city of the second class, duly organized. That on the 4th of October, 1887, at an adjourned meeting of the city council duly held on the said day in said city, “the following resolution was duly adopted by a two-thirds vote of said city council, to-wit: ‘Whereas, the territory hereinafter described is situate contiguous to the corporate city of Seward, Neb., and a large portion of which territory is subdivided into parcels of ten acres or less; and whereas, it would be materially beneficial and advantageous to said city to have the same annexed thereto: Therefore resolved, that it is the sense of this council that the contiguous territory hereinafter described be annexed to and become a part of the corporate city of Seward, Seward county, Neb.; and be it further resolved and ordered that the city attorney be, and is hereby, instructed to prepare and present to the district court of Seward county, Neb., at the next term thereof, a petition in the manner prescribed by law, in the name of said city, praying that said territory be annexed to and become a part of the city of Seward, Neb.; said territory being bounded and described as follows, to-wit: Commencing at the S. W. corner of the city of Seward, Neb., and running thence due south to the south quarter corner of sec. 20, town 11, R. 3 east; thence east, on the south line of said sec. 20, to the S. W. corner of sec. 21, T. 11, R. 3 east; thence east, along the south line of said sec. 21, 1,950 feet, more or less, to where said line intersects the center of the channel of Blue river; thence, in a southerly direction, along the center of said river, 720 feet, more or less, to a point where said river is not intersected by the boundary of the present Seward city limits; thence following along the southerly boundary of said city, back to the point of beginning. Also, commencing at the quarter corner between sections 21 and 28, T. 11, R. 3 east, and running thence east, on the line between said sections 21 and 28, 287 feet; thence north, on a line parallel with and 287 feet east of the north and south half section line, through said section 21, to an intersection with the north line of said section 21; thence west 287 feet, to the quarter corner between said sections 21 and 16, T. 11, R. 3 east; thence north, along the north and south half section line through said section 16, 1,320 feet; thence west, to an intersection with west line of section 16, at a point 1,320 feet north of the south-west corner of said section 16, to the south-west corner of said section 16, 1,320 feet; thence west, along the line between sections 17 and 20, T. 11, R. 3 east, to the north-west corner of the north-west corner of the north-east quarter of north-east quarter of said section 20, 1,320 feet; thence south, along the west line of said N. E. 1/4 of N. E. 1/4 of section 20, to an intersection with the north line of the city of Seward, Neb., as at present bounded; and thence following back, along the north and east boundaries of the city of Seward, to the place of beginning.’ The vote upon the adoption of said resolution by said city council was as follows, to-wit: Those voting in favor of the adoption of said resolution, Mulfinger, Goehner, and Betzer, three votes ‘Yea,’ and those voting against said resolution was Councilman Pence, one vote ‘Nay.’ Whereupon said resolution was then declared adopted, two-thirds having voted in favor thereof; which...