Lansing v. City of Lincoln

• Decision Date: 01 July 1891
• Citation: 49 N.W. 650,32 Neb. 457
• Parties: LANSING ET AL. v. CITY OF LINCOLN ET AL.
• Court: Nebraska Supreme Court

32 Neb. 457

49 N.W. 650

LANSING ET AL.

v.CITY OF LINCOLN ET AL.

Supreme Court of Nebraska.

July 1, 1891.

Syllabus by the Court.

The alley in a city block is for the special benefit of the several lots abutting thereon, and under the provisions of subdivision 63, § 68, c. 13 a, Comp. St., not to exceed one-half of the cost of paving thereon opposite each lot may be assessed upon such lot. If a lot has been subdivided, then the assessment is to be made upon the several subdivisions upon an equitable and just basis, in proportion to the benefits received. It is not necessary that the subdivision actually abut on the alley in order to be liable for a portion of the tax. The question of the amount of special benefits is one of fact, to be determined from the evidence.

Appeal from district court, Lancaster county; CHAPMAN, Judge.Chas. L. Hall, for appellants.

E. P. Holmes, City Atty., ( J. R. Webster, of counsel,) for appellees.

MAXWELL, J.

This is an appeal in equity from the district court of Lancaster county. It is alleged in the petition that “the said plaintiff James F. Lansing is the owner in fee-simple and in possession of lots A, B, and E of subdivision of lots 1 and 2, in block 40, in said city of Lincoln, Lancaster county, Neb. The said plaintiff Adeline R. Schoolcraft is the owner in fee-simple and in possession of lot C of subdivision of lots 1 and 2, in block 40, in said city of Lincoln. The said plaintiff Mary Geiser is the owner in fee-simple and in possession of lot D, in said subdivision of lots 1 and 2, in said block 40, in said city of Lincoln. That said lots 1 and 2, in said block 40, in said city of Lincoln, were originally each 50 feet in width and 142 in depth, and were bounded on the north by P. street, in said city, and on the south by the alley in said block 40. That prior to the 20th day of September, 1880, said original lots 1 and 2, in said block 40, had been, by Theodore S. Ganter, the owner, sold out in parcels by metes and bounds, at different times, to different parties. That on said 20th day of September, 1880, the then owners of said different parts and parcels of said original lots 1 and 2 did, in accordance with the provisions of section 104 of an act of the legislature of Nebraska, entitled ‘An act to provide for the organization, government, and powers of cities and villages,’ approved March 1, 1879, under which said act said defendant was then organized and doing business, make and execute a plat of the subdivision of said lots 1 and 2, in said block 40; and on said 20th day of September, 1880, filed the same for record in the office of the clerk of said Lancaster county, and said plat thereby became a part of the recorded plat of said city of Lincoln, defendant herein, a copy of which said plat of the said subdivision of said lots 1 and 2, in said block 40, is hereto attached, marked ‘Exhibit A,’ and made a part of this petition. That said lots A and B, belonging to said Lansing, plaintiff, and said lot C, belonging to said Schoolcraft, plaintiff, are each 55 feet north, and distant from the north line and nearest point of said alley in said block 40. That said lot E, belonging to said plaintiff Lansing, and said lot D, belonging to said plaintiff Geiser, are each 25 feet north and distant from the north line and nearest point of said alley in said block 40. That neither said lot A nor B nor C nor D nor E of said subdivision of said lots 1 and 2, in said block 40, belonging to these plaintiffs as aforesaid, is adjacent to or abuts upon said alley in said block 40. That no one of said lots of said subdivision belonging to said plaintiffs, to-wit, lots A, B, C, D, and E, is accessible from said alley in said block 40, and no one of said lots A, B, C, D, and E aforesaid, has access to said alley, and that not said A nor B nor C nor D nor E of said subdivision of said lots 1 and 2, in said block 40, is specially benefited in any sum whatever, or in any manner whatever, by reason of the grading, curbing, guttering, and paving of said alley in said block 40, and cannot use or have any use whatever of said alley in said block 40. That said defendant the city of Lincoln, by its mayor and council, heretofore to-wit, on or about the 17th day of April, 1887, passed an ordinance creating alley paving districts, and by ordinance passed about April 17, 1887, therein and thereby ordered the grading, curbing, and paving of said alley in said block 40. That in pursuance thereof said alley in said block 40 has been graded, curbed, and paved, but in no place or way whatever does said grading, curbing, or paving of said alley in said block 40 specially benefit the said lots A, B, C, D, and E of said subdivision of said lots 1 and 2, blocks 40, belonging as aforesaid to these plaintiffs, nor abut thereon, and is not adjacent thereto. That thereafter, to-wit, on or about the 23d day of October, 1889, the said defendant the city of Lincoln, by its mayor and council, passed an ordinance levying a special tax and assessment to cover the cost of curbing, grading, and paving said alley in said block 40. That in said last-named ordinance said defendant the city of Lincoln, by its mayor and council, adjudged, determined, and established that said lot A, of said subdivision of said lots 1 and 2, block 40, aforesaid, had been and was specially benefited to the amount of $26.97, by reason of the paving of said alley in said block 40. That said lot B of said subdivision had been and was specially benefited, by reason of paving said alley in said block 40, to the amount of $26.97. That said lot C therein, as aforesaid, had been and was specially benefited, by reason of the paving of said alley in said block 40, to the amount of $26.97. That said lot D therein, as aforesaid, had been and was, by reason of paving said alley in said block 40, specially benefited to the amount of $42.57; and that said lot E, as aforesaid, therein, was and had been specially benefited, by reason of said paving of said alley in said block 40, to the amount of $46.80, and therein and thereby said defendant the city of Lincoln, by its mayor and council, levied and assessed upon said plaintiffs' said lots, in said subdivision of said lots 1 and 2, in said block 40, to and towards paying the cost of paving said alley in said block 40, as follows, to-wit: Upon lot A therein, belonging to plaintiff Lansing, the sum of $26.97; upon lot B therein, belonging to said plaintiff Lansing, the sum of $26.97; upon lot C therein, belonging to said plaintiff Schoolcraft, the sum of $26.97; upon lot D therein, belonging to said plaintiff Geiser, the sum of $42.57; upon lot E therein, belonging to said plaintiff Lansing, the sum of $46.80,--the said tax and special assessment being therein alleged to be the exact special benefit to the said lots so assessed by reason of paving said alley in said block 40. That said plaintiff Lansing for himself alleges that the said special tax and assessment upon his said lots A, B, and E of said subdivision of said lots 1 and 2, in said block 40, aggregating the sum of $100.14, levied upon his said property for and towards paying the cost of paving said alley, in said block 40; and said plaintiff Schoolcraft for herself alleges that said assessment of $26.67 upon her said property above described for paving of said alley in said block 40; and said plaintiff Geiser alleges that said special tax and assessment of $42.57, levied upon her said property above described for cost of paving said alley in said block 40; each plaintiff herein alleges that said assessment upon plaintiffs' property aforesaid, as aforesaid, is utterly illegal, and without any authority whatever, and is in conflict with and in violation of the provisions of law relative to grading, curbing, and paving alleys in said city of Lincoln. That said assessment of the property of these plaintiffs for cost of paving said alley in said block 40, in said city as aforesaid, is made upon property not abutting on said alley, and the property aforesaid of these plaintiffs, to-wit, said lots A, B, C, D, and E, of subdivision of lots 1 and 2, block 40, are not specially benefited by the said paving of said alley in said block 40, and said lots belonging to said plaintiffs are not adjacent to said alley aforesaid. That after the passage of said above last-mentioned ordinance a duplicate thereof was on said day made and delivered to defendant Elmer B. Stephenson, treasurer of said city as aforesaid, to which said duplicate the clerk of said city appended a warrant in the usual and due form of law, requiring said treasurer of said city to collect the said pretended special assessment against the said property of these plaintiffs by distress and sale of the goods and chattels of these plaintiffs. If the said special tax and assessments aforesaid should not be paid on or before the time fixed by said ordinance and law for the same to become delinquent, to-wit, the 12th day of December, 1889,...