Gottschalk v. Becher

• Decision Date: 15 September 1891
• Citation: 32 Neb. 653,49 N.W. 715
• Parties: GOTTSCHALK v. BECHER, TREASURER.
• Court: Nebraska Supreme Court

32 Neb. 653

49 N.W. 715

GOTTSCHALK

v.BECHER, TREASURER.

Supreme Court of Nebraska.

Sept. 15, 1891.

Syllabus by the Court.

1. Sections 95 and 99 of chapter 14, Comp. St. 1891, are not in pari materia to be construed as exempting from taxation for pre-existing debts adjacent territory annexed by municipal corporations under section 99.

2. The annexation of adjacent territory under section 99 is a judicial proceeding, in which the land-owner is entitled to all the rights of contravention and of appeal.

Error to district court, Platte county; POST, Judge.

Action by Margaret Gottschalk to enjoin Gus. S. Becher, treasurer of Platte county, from collecting certain taxes. Demurrer sustained. Plaintiff brings error. Affirmed.

S. S. McAllister, for plaintiff in error.

J. M. Gondring and Sullivan & Reeder, for defendant in error.

COBB, C. J.

In June, 1890, the plaintiff in error commenced her action against the treasurer of said county, praying for a perpetual injunction against the collection of certain taxes, and setting up that she is the owner of certain real estate, beginning at a point 728 feet north of the S. W. corner of the N. E. quarter of section 19, township 17 north, range 1 east, of the 6th P. M., in said county; running thence east 568 feet; thence S. 364 feet; thence east on a line parallel with the south line of the N. E. quarter of said section 19 to a point directly north of the N. E. corner of lot No. 3, in block No. 40, in the original plat of the town of Columbus; thence south to the south line of the N. W. quarter of section 20, in said township and range. (2) Plaintiff alleges that by a decree of this court, duly made and entered on the 15th day of August, 1888, said tract of land was annexed to the city of Columbus as a part thereof. (3) Plaintiff alleges that said city of Columbus, after said land was annexed thereto, without the consent and against the wish of this said plaintiff, platted and laid said land out into lots and blocks, with streets and alleys, as shown by the county records of said Platte county, in a book kept in the county clerk's officc of said county, known as the ‘Plat-Book,’ said plat being found at page 51 of said book, a copy of which page and plat is hereto attached, marked ‘Exhibit A,’ and made a part of this petition. That by reason of the platting and surveying of said land by said city, as aforesaid, it appears upon the books of said defendant as lots and blocks, and is assessed as such, whereas in truth and in fact said land has never been laid out into lots and blocks or platted by this plaintiff, and should not so appear upon the tax records or books of said defendant. (4) Plaintiff alleges that a portion of said tract of land, and all thereof that belongs to said plaintiff, is mentioned and described on said plat as blocks 5, 6, 7, and 8, and the west half of blocks 9 and 11, and that said land contained in said blocks is assessed on the tax books and records of said defendant at the total amount of $160.22 for the year 1889, which said amount said defendant claims and alleges to be a lien and incumbrance on said land, as lots and blocks, as provided by the revenue laws of Nebraska. (5) Plaintiff alleges that the total amount of the tax levied on said land for all purposes for 1889 is equal to six cents and one-half mill on each dollar in valuation; that a large amount of said tax is illegal and void, as follows, to-wit: Long prior to the annexation of said land to said city, said city voted and granted certain bonds to the O. N. & B. H. Ry. Co. for the payment of which said bonds and the interest thereon said blocks are assessed and taxed at the sum of two and one-half mills on each dollar of valuation. That long prior to the annexation of said land to said city said city voted and granted bonds to construct water-works within the then limits of said city, and that a tax of seven mills on each dollar in valuation is levied and assessed on said blocks to pay said water-bonds and the interest thereon. That long prior to the annexation of said land to said city, said city voted and issued certain bonds to aid in the construction of certain bridges known as the ‘Loup’ and ‘Platte’ river bridges. That there is a tax of eight mills on each dollar in valuation assessed and levied on said blocks to pay said bridge bonds and the interest thereon. That said taxes of seventeen and one-half mills levied on said land as aforesaid is levied and assessed wholly without authority of law, and is no lien or incumbrance on said land. (6) Plaintiff alleges that by reason of the division of said land into lots and blocks as aforesaid it has been taxed and assessed beyond its real value, in proportion to the assessment and taxation of other property similarly situated. (7) Plaintiff alleges that said defendant now threatens and proposes to collect said taxes, and that said taxes, and all of them, appear to be a cloud and a lien on said land in the office and on the records of said defendant, whereas, in truth and in fact, said tax of seventeen and one-half mills is no lien on said land. (8) Plaintiff alleges that she is now able and willing to pay all just taxes taxable on or to said land so soon as the amount thereof is ascertained and declared by this court. Said plaintiff therefore prays that this court may ascertain and declare the true amount of taxes due on said land, to the end that it may be adjusted and paid; that said land may be assessed at its true taxable value as acre property; that said tax of seventeen and one-half mills aforesaid may be declared to beillegal and void, and the collection thereof prohibited and restrained forever; and for such other and further relief as may be just and equitable.” Second count: “Said plaintiff for a second and further cause of action refers to the facts stated and set forth in her first count of this petition, and makes them a part of her second count or cause of action so far as they are material or applicable thereto. She alleges that the surveying and platting of said land and laying it out into lots and blocks, streets and alleys, was wholly without her consent and against her will and wish. That she has never received or been tendered any compensation for taking or appropriating her said land for streets and alleys. That she has never dedicated any of the said land to the public for public uses as streets or alleys. That that portion of said land designated on said plat as blocks 5, 6, 7, and 8, and the territory contiguous thereto, designated on said plat as streets and alleys, now is, and for a long time past has been, fenced in by this plaintiff, and used as a pasture. That no part of the territory contiguous to said blocks 5, 6, 7, or 8, indicated on said plat as streets or alleys, has ever been used by the public as such, and it is not necessary for the public convenience, or for the convenience of any private individual, that they should be used as such. She alleges that the surveying and platting and pretended laying out of said land into lots and blocks, streets and alleys, by said city, was and is wholly void, and without authority of law; that a pretended sale of said land by lots or blocks, to pay or satisfy said pretended tax, would convey no title to the purchaser, but would cast a cloud on the title of this plaintiff to her said lands. She therefore asks and prays that a sale of said land or any part thereof may be forever prohibited and restrained for the pretended purpose of paying said tax, on the ground and for the reason that said pretended sale would cast a cloud on the title of this plaintiff; that the purchaser would acquire no valid title; and that said pretended surveying, platting, and...