Darst v. Griffin

• Citation: 31 Neb. 668,48 N.W. 819
• Parties: DARST ET AL. v. GRIFFIN, TREASURER, ET AL.
• Decision Date: 05 May 1891
• Court: Supreme Court of Nebraska

31 Neb. 668

48 N.W. 819

DARST ET AL.

v.GRIFFIN, TREASURER, ET AL.

Supreme Court of Nebraska.

May 5, 1891.

Syllabus by the Court.

1. The provisions of section 6, art. 9, of the constitution, that “the legislature may vest the corporate authority of cities, towns, and villages with power to make local improvements by special assessments or by special taxation of the property benefited,” do not prohibit the legislature from conferring the power upon counties to make local improvements by special assessment or taxation of property benefited. State v. Dodge Co., 8 Neb. 124;State v. Lancaster Co., 4 Neb. 540.

2. In a proceeding to establish a drain or ditch under the statute, the jurisdictional facts are-- First, a petition signed by one or more owners of land to be affected by the proposed ditch; second, the bond provided by statute; third, that the proposed improvement is necessary, and will be conducive to the health, convenience, and welfare of the public; fourth, the statutory notice. Where the county board has jurisdiction, irregularities in the proceedings will not render the assessment void.

3. Where objections are made to certain assessments on the ground of irregularities, the court, as a condition of granting relief, may require the property owner to do equity by paying the amount which his property is benefited by the improvement.

4. A party who sees a public improvement being carried on calculated to benefit his property cannot wait until it is completed, and the expenditure has been made, and his property received the benefit, before proceeding to avoid the tax, but must, as a condition of relief by injunction, do equity by paying the amount thereof justly chargeable against such property.

Appeal from district court, Burt county; WAKELEY, Judge.Montgomery & Jeffrey, for appellants.

Lake, Hamilton & Maxwell and W. C. Walton, for appellees.

MAXWELL, J.

This action was brought in the district court of Burt county by the plaintiff and 24 others against the defendants to restrain the execution of certain tax-deeds, and to have the special assessments declared illegal and void and canceled on the county records as clouds upon the plaintiffs' titles to their respective tracts of land. The assessments were made to pay for the construction of a ditch which extends through a part of Burt into Washington county, and is known as the “Fish Creek Ditch Improvement.” The action was not brought until the improvement had been made, so that the plaintiffs received the benefit thereof. The assessments against the plaintiffs' lands were not paid, and such lands were thereupon advertised and sold to the defendants Sutherland and Wychoff, who were about to receive tax-deeds of said lands in pursuance of said purchase. The petition was presented to Judge WAKELEY, who granted a temporary order of injunction. The defendants thereupon filed an answer, which need not be noticed. On the trial of the cause a decree was rendered conditionally in favor of the plaintiffs, as follows: “This cause came on heretofore to be heard, and was tried and submitted to the court upon the pleadings, the evidence, and the arguments of counsel, and was by the court taken under advisement; and now, on consideration thereof, and being fully advised in the premises, the court finds that the plaintiffs, at the commencement of this action, were and still are the owners of the lands described in the petition, and hereinafter described, as set forth in the petition. That the lands were sold by the treasurer of Burt county at the times and for the amounts and to the persons stated in the petition, for delinquent assessments levied and charged against said land, on account of the construction of the main ditch and spur ditch No. 1 of the Fish Creek Ditch improvement, in Burt county, Neb. That there were material errors, irregularities, and defects in the proceedings, resulting in said assessments and in the sale of said lands therefor, which render the said taxsales illegal and voidable, viz.: (1) The orders of the county commissioners to the engineer were insufficient, for failure to comply with the provisions of sections 7, 8, c. 89, Comp. St. Neb., providing for draining of marsh or swamp lands, in this: that it did not...