Johnson v. City of Hastings, S-90-188

• Decision Date: 21 August 1992
• Docket Number: No. S-90-188,S-90-188
• Citation: 241 Neb. 291,488 N.W.2d 20
• Parties: Donna JOHNSON et al., Appellees, v. CITY OF HASTINGS, Nebraska, a Municipal Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 20

488 N.W.2d 20

241 Neb. 291

Donna JOHNSON et al., Appellees, v. CITY OF HASTINGS, Nebraska, a Municipal Corporation, Appellant.

No. S-90-188.

Supreme Court of Nebraska.

Aug. 21, 1992.

Syllabus by the Court

1. Equity: Appeal and Error. On appeal from a district court to an appellate court, an equity case is tried as to factual issues de novo on the record, requiring the appellate court to reach a conclusion independent of the findings of the trial court. However, when credible evidence conflicts, the appellate court may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

2. Municipal Corporations: Annexation. The annexation of land to cities and towns is a legislative function and it is for their governing bodies to determine the facts which authorize the exercise of the power granted.

3. Municipal Corporations: Annexation: Boundaries. A municipal corporation has no power to extend or change its boundaries otherwise than provided by constitutional enactment or as it is empowered by the Legislature by statute to do.

4. Municipal Corporations: Annexation: Statutes. The power delegated to municipal corporations to annex territory must be exercised in strict accord with the statute conferring it.

5. Municipal Corporations: Annexation. The power of a municipality to annex territory is, under the specific provisions of Neb.Rev.Stat. § 16-117 (Reissue 1987), limited to annexing contiguous or adjacent land if it is urban or suburban in character and not agricultural land that is rural in character.

6. Ordinances: Proof. The burden is on the one who attacks an ordinance, valid on its face and enacted under lawful authority, to prove facts to establish its invalidity.

7. Municipal Corporations: Annexation: Words and Phrases. The terms "contiguous" and "adjacent" are used synonymously and interchangeably. If the territory sought to be annexed is not contiguous to the municipality, the proceedings are without legal effect.

8. Municipal Corporations. As to territorial extent, the idea of a city is one of unity, not of plurality; of compactness or contiguity, not separation or segregation.

9. Municipal Corporations: Annexation: Boundaries: Words and Phrases. Contiguity means that the two connecting boundaries should be substantially adjacent.

10. Municipal Corporations: Annexation: Words and Phrases. Although Neb.Rev.Stat. § 16-118 (Reissue 1991) states that lands, lots, tracts, streets, or highways shall be deemed contiguous although a stream, embankment, strip, or parcel of land not more than 200 feet wide lies between the same and the corporate limits, the statute implies a situation where a strip of land is located parallel to the city limits.

11. Municipal Corporations: Annexation: Boundaries: Words and Phrases. As applied to annexation of streets or roads projecting beyond the limits of a municipality, "contiguous" has been construed to mean contiguous in the sense of adjacent and parallel to the existing municipal limits. Accordingly, the annexation of a portion of a highway extending beyond the border of a municipality, connected only by the width of the highway as it adjoined the municipal boundary, generally is considered to be an invalid "strip" or "corridor" annexation.

Michael E. Sullivan, Hastings City Atty., for appellant.

Kenneth H. Elson, Grand Island, for appellee Southern Nebraska Rural Public Power Dist.

David G. Dales, Columbus, for appellee Nebraska Public Power Dist.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

This case is a consolidation of three actions challenging the annexation of a tract by the defendant, City of Hastings. The defendant appeals the district court's finding that the annexation was invalid. We affirm.

On October 28, 1988, the City of Hastings passed ordinance No. 3089, which annexed a saucepan-shaped tract of land extending eastward from the prior existing city limits. The tract of land is described by a single metes and bounds description. It includes a 120-foot-wide strip of U.S. Highway 6 and U.S. Highway 6 right-of-way--extending approximately three-quarters of a mile in length from the prior city limits eastward to the eastern edge of the Central Community College campus--and the Central Community College campus, including the segment of Highway 6 which abuts the campus to the north. The Central Community College campus constitutes the main body of the tract sought to be annexed. It is connected to the City of Hastings solely by the strip which includes Highway 6.

Actions challenging the annexation were filed in the district court for Adams County by Donna Johnson and Gary Duncan, by Southern Nebraska Rural Public Power District (Southern), and by Nebraska Public Power District (NPPD). Plaintiff NPPD specifically sought declaratory relief only, while plaintiffs Johnson, Duncan, and Southern specifically sought injunctive relief against the city.

Plaintiffs Johnson and Duncan own farms within 2 miles of the territory sought to be annexed and, as a result, will be subject to the city's zoning authority, pursuant to Neb.Rev.Stat. § 16-901 (Reissue 1991), if the City of Hastings annexes the tract. Part of Southern's service area is within the annexed tract which covers Highway 6. In addition, Southern has facilities and power distribution lines within 2 miles of the area sought to be annexed. Southern serves large retail customers in the area east of the city limits of Hastings, with the exception of the area served by the City of Hastings. NPPD, also a public electric utility company, serves the customers within the annexed area.

The implications of the annexation are an increase in taxes for Johnson and Duncan, a loss of NPPD's distribution facilities and services for the Central Community College campus to the City of Hastings, and a loss of retail customers and revenue for Southern to the City of Hastings in the area surrounding Central Community College. The three cases were consolidated for trial in the district court for Adams County and tried on December 12 and 13, 1989.

The Hastings City Council, in enacting ordinance No. 3089, made a specific finding that the entire annexed area was urban and suburban in character, and contiguous and adjacent to the corporate limits of the city. Apparently relying on our holding in Piester v. City of North Platte, 198 Neb. 220, 223, 252 N.W.2d 159, 161 (1977), that "the character of a segment of an Interstate Highway sought to be annexed is to be determined from the areas immediately adjacent to the annexed portion," the parties focused during trial on the issue of whether the land adjacent to Highway 6 is rural or urban in character. A detailed description of the land surrounding Highway 6 need not be recited, since we do not decide the case on the issue of whether that portion of Highway 6 is urban or rural in nature.

On January 22, 1990, the trial court made the following findings and orders: "1. Specifically finds that the land adjacent to the segment of Highway 6 sought to be annexed by the defendant is agricultural land, rural in character. 2. Further finds that as a consequence thereof, the annexation was improper and Ordinance No. 3089 is null and void." In addition, the court found that plaintiffs Johnson, Duncan, and Southern were without an adequate remedy at law and therefore enjoined the City of Hastings from enforcing its ordinance.

The city filed a motion for new trial which was overruled by the district court.

The city timely appealed to this court and assigned that the district court erred in (1) determining that the land adjacent to the segment of Highway 6 sought to be annexed by the city is agricultural land, rural in character; (2) failing to find that all of the territory annexed by ordinance No. 3089 is urban or suburban in character; (3) finding that the plaintiffs have met their burden of proof; (4) finding that plaintiff Southern had sufficient standing to be a party in this action; (5) refusing to admit and consider evidence of the highest and best use of certain property; and (6) declaring the entire ordinance No. 3089 void, when annexation of at least one of the tracts covered by the ordinance was legally valid.

On appeal from the district court to an appellate court, an equity case is tried as to factual issues de novo on the record, requiring the appellate court to reach a conclusion independent of the findings of the trial court.... However, when credible evidence conflicts, the appellate court may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

(Citation omitted.) Dowd v. Bd. of Equal., 240 Neb. 437, 439, 482 N.W.2d 583, 585 (1992).

Hastings is considered a city of the first class. Neb.Rev.Stat. § 16-101 (Reissue 1991). Neb.Rev.Stat. § 16-117 (Reissue 1987), which grants cities of the first class the power to extend the city limits, states:

The corporate limits of a city of the first class shall remain as before, and the mayor and council may by ordinance, except as provided in sections 13-1111 to 13-1118, and amendments thereto, at any time, include within the corporate limits of such city any contiguous or adjacent lands, lots, tracts, streets, or highways as are urban or suburban in character, and in such direction as may be deemed proper. Such grant of power shall not be construed as conferring power upon the mayor and council to extend the limits of a city of the first class over any agricultural lands which are rural in character.

"The annexation of land to cities and towns is a legislative function and it is for their governing bodies to determine the facts which authorize the exercise of the power granted." Plumfield Nurseries, Inc. v. Dodge County, 184 Neb. 346, 351, 167 N.W.2d 560, 563 (1969). However, "[a] municipal corporation has no power to...