City of Wilber v. Bednar
| Decision Date | 26 May 1932 |
| Docket Number | 28118 |
| Citation | 242 N.W. 644,123 Neb. 324 |
| Parties | CITY OF WILBER, APPELLEE, v. ALBERT BEDNAR: ADOLPH B. SOBOTKA ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Saline county: ROBERT M PROUDFIT, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. When, in a suit brought under section 17-409, Comp. St. 1929 it appears that territory sought to be annexed to a city will be benefited from the annexation, or that justice and equity require its annexation, a decree annexing the same will be upheld.
2. When an action in equity is appealed, it is the duty of this court to try the issues de novo and to reach an independent conclusion without reference to the findings of the district court. Comp. St. 1929, § 20-1925. But in a case wherein the trial court has made a personal ex amination of the physical facts, and where, in the same case, the oral evidence in respect of material issues is so conflicting that it cannot be reconciled, this court will consider the fact that such examination was made and that such court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite. State v. Delaware-Hickman Ditch Co., 114 Neb. 806, 210 N.W. 279, followed.
3. Evidence examined and held sufficient to sustain the judgment.
Appeal from District Court, Saline County; Proudfit, Judge.
Action by the City of Wilber against Albert Bednar and others. From a decree for plaintiff, defendant Sobotka and others appeal.
Affirmed.
George E. Hager, for appellants.
Bartos, Bartos & Placek, contra.
Heard before ROSE, GOOD and EBERLY, JJ., and CARTER and CHASE, District Judges.
This is an action brought by the city of Wilber against Albert Bednar and other defendants under section 17-409, Comp. St. 1929, for the purpose of annexing certain territory belonging to each of said defendants. From a decree of the trial court finding against the defendants and annexing the territory of each to the city, the defendants Adolph B. Sobotka, Edward H. Vosika, Anton Vit, Emil Fuchs, and Anna Bruha bring the case to this court on appeal.
The decree of the trial court is assailed as being wholly unsupported by the evidence. The testimony is to the effect that the several tracts of land belonging to the appellants lie adjacent to the corporate limits of the city of Wilber and have been subdivided into lots and blocks, streets and alleys, that a number of people have established their homes thereon and are now enjoying the benefits of city utilities, such as electric lights, city water, sanitary sewer and the ice and cold storage plant, all of which are owned and operated by the city of Wilber. The testimony, however, discloses that the ice and cold storage plant was used generally by farmers in the territory surrounding the city of Wilber and that these defendants receive no benefits from it that are not available to the community as a whole. All the residences on said tracts are furnished with electric lights by the city under special agreements. The sanitary sewers are close enough to each tract to make them available to the persons residing thereon. Sidewalks have been constructed to the corporate limits of the city adjoining the tracts sought to be annexed and are used continually by the defendants. The street lighting system of the city has been constructed up to the corporate limits adjoining these properties. The streets of the city have been paved to a point less than 75 feet from the tracts belonging to the defendants Sobotka, Vit, Fuchs and Bruha. Most of these defendants are connected with the water system of the city. Fire hydrants have been constructed in such close proximity as to furnish complete fire protection to all the residences and buildings on the tracts sought to be annexed. The properties within the corporate limits and adjacent to those sought to be annexed are platted and occupied and indicate that the city has grown until it has built up to the property of these defendants. The tracts owned by the defendants Sobotka, Vit, Fuchs and Bruha are used exclusively for residence purposes.
The evidence shows that the defendant Vosika is the owner of, and occupies and cultivates, 76 acres of land adjoining the city of Wilber on the north, less two tracts in the southeast corner 154 feet by 123 feet and 66 feet by 123 feet which had been sold by him prior to the commencement of this action for residence purposes. The amount of the land sought to be annexed belonging to this defendant is a strip 622 feet by 300 feet, less the two small subdivisions thereof above mentioned, both of which were annexed by the trial court and from which no appeal was taken. The part sought to be annexed to the city is claimed to be an integral part of the farm on which all his farm buildings and improvements, consisting of his barns, sheds, pens, etc., are located. The evidence shows that the defendant is engaged in farming and no other business, and that he keeps and raises grains, forage crops, hogs, cattle and other stock on this land, and as his buildings and granaries are on the tract sought to be annexed, they are necessarily kept on that part of it. The evidence, however, shows that the utilities and improvements of the city are used and enjoyed by this defendant to the same extent as the other defendants here on appeal and which have been heretofore set out in this opinion.
The city of Wilber, according to the 1920 census, had a population of 1,255 persons and in 1930 a population of 1,352. All of said defendants get their mail at the post office in Wilber, attend the churches of the city, and are in the same school district as the inhabitants of the municipality. It is also disclosed by the testimony that the bonded indebtedness of the city is approximately $ 308,000 and that the mill levy within the city for the year 1930 was 19 mills. It is not disputed that the utilities and improvements of the city are of sufficient size and capacity to service all the properties sought to be annexed.
Section 17-409, Comp. St. 1929, is in part as follows: "If the court find the allegations of the petition to be true, and that such territory, or any part thereof, would receive material benefit by its annexation to such corporation, or that justice and equity require such annexation of said territory, or any part thereof, a decree shall be entered accordingly; and a copy of the decree of the court, duly certified under the seal thereof, * * * shall be filed and recorded in the office of the county clerk or recorder of the county in which such territory lies." This statute has been before this court on numerous occasions, and while each case has been determined generally upon the facts of the particular case, it has...
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