Hemple v. City of Hastings

• Decision Date: 12 July 1907
• Docket Number: 14,858
• Citation: 113 N.W. 187,79 Neb. 723
• Parties: PETER HEMPLE ET AL., APPELLEES, v. CITY OF HASTINGS, APPELLANT
• Court: Nebraska Supreme Court

113 N.W. 187

79 Neb. 723

PETER HEMPLE ET AL., APPELLEES, v. CITY OF HASTINGS, APPELLANT

No. 14,858

Supreme Court of Nebraska

July 12, 1907

APPEAL from the district court for Adams county: ED L. ADAMS, JUDGE. Affirmed.

AFFIRMED.

W. F Button, for appellant.

R. A Batty, F. P. Olmstead and John Snider, contra.

CALKINS C. JACKSON and AMES, CC., concur.

OPINION

CALKINS, C.

In 1887 one Bostwick, being the owner of a tract of land contiguous to, but not within, the corporate limits of the city of Hastings, subdivided the same into blocks and lots, and, having made a plat thereof as provided by statute, caused the same to be recorded in the office of the register of deeds of Adams county. In this plat and the certificate attached, the subdivision was called "Bostwick's Second Addition to Hastings." No ordinance was passed by the city, nor was any proceeding had or taken, by which the property in question was included or attempted to be included within the corporate bounds of the city, but city taxes were levied against the same for the years 1888, 1889, 1890, 1891. In 1891 the then owners vacated the plat under the provisions of the statute, and no city taxes were levied against the same until the year 1904, in which year, as well as in 1905, the county clerk extended upon the tax list city taxes levied by the city of Hastings as against these lands. The plaintiffs having become the owners of the land at this time brought an action in the district court to declare such taxes void and to restrain their collection. This action resulted in a decree for the plaintiffs, from which the defendant, the city of Hastings, appeals.

1. The filing of a plat by the owner of property contiguous to, but outside, the corporate limits of a city does not have the effect of changing the boundaries of the city so as to include such property. The power to establish and change boundaries of a municipal corporation is a legislative one, and must be exercised either directly or in the method prescribed in the constituent act or other statute upon the subject. 1 Dillon, Municipal Corporations (4th ed.), sec. 124; City of Hastings v. Hansen, 44 Neb. 704, 63 N.W. 34. It has sometimes been provided that the subdivision of property into city lots should be the test whether it is rural or urban in its character, and that the circumstance of such subdivision should be one of the jurisdictional facts upon which to found proceedings to extend the boundaries so as to include within the corporate limits of the city such property; but it has nowhere been provided that the filing of such a plat should of itself have that effect.

2. It is contended by the defendant that the question whether this land was within or without the city limits cannot be determined in a suit to declare the taxes invalid. It is said that to so proceed is to attack collaterally the validity of the organization; and we are cited to the cases of South Platte Land Co. v. Buffalo County, 15 Neb 605, and McClay v. City of Lincoln, 32 Neb. 412, 49 N.W. 282, to sustain this proposition. In the former case the town of Kearney was incorporated under the act of 1866, which provided that, if a majority of the taxable inhabitants of any town should present a petition to the county commissioners designating the name they wished to assume, etc., such commissioners, upon being satisfied that a majority of the taxable inhabitants had signed such petition, might declare the town incorporated. The boundaries, as stated in the petition and the order of the county commissioners, included a large amount of agricultural land. The owners of this land, some 12 years after the incorporation, brought an...