Roads v. Estabrook

• Decision Date: 28 September 1892
• Citation: Roads v. Estabrook, 35 Neb. 297, 53 N. W. 64 (Neb. 1892)
• Parties: ADDISON ROADS, APPELLANT, v. EXPERIENCE ESTABROOK, APPELLEE, IMPLEADED WITH J. B. WHITTIER, APPELLANT
• Court: Nebraska Supreme Court

53 N.W. 64

35 Neb. 297

ADDISON ROADS, APPELLANT, v. EXPERIENCE ESTABROOK, APPELLEE, IMPLEADED WITH J. B. WHITTIER, APPELLANT

Supreme Court of Nebraska

September 28, 1892

APPEAL from the district court for Douglas county. Heard below before WAKELEY, J.

Reversed and remanded.

Montgomery & Jeffrey, for appellants:

In a proceeding in equity to enforce a tax lien the court will look to the statute and not to the assessment as the foundation of such lien, and will regard the amount of taxes against the property, as borne upon the books of the county as unalterably established. (Otoe County v. Mathews, 18 Neb. 470; Lammers v. Comstock, 20 Id., 345; Merriam v. Dovey, 25 Id., 622.) Where there is no recorded plat of city property, a description by lot and block, referring to the recognized survey, is sufficient for levy and assessment of taxes, and by the recognized survey the description by lot and block is definite. (Holts v Streitz, 16 Neb. 249; Bryant v. Estabrook, Id., 223; Janesville v. Markoe, 18 Wis. 356; Finney v Boyd, 26 Id., 356.)

E. Estabrook, contra:

Land cannot be assessed for taxes as a village lot where there is no recorded plat. (Johnson v. Scott, 11 Mich. 232; Manley v. Gibson, 13 Ill. 308; Jones v. Johnston, 18 How. [U. S.], 154; People v. C. & A. R. Co., 96 Ill. 369; Shepard v. Shepard, 36 Mich. 174; Sandford v. People, 102 Ill. 374; Sharpe v. Dillman, 77 Ind. 280; Merton v. Dolphin, 28 Wis. 459; People v. Reat, 107 Ill. 584; Village of Winnetka v. Prouty, Id., 221.)

OPINION

POST, J.

The plaintiff herein filed in the district court of Douglas county five petitions praying for decrees of foreclosure of tax liens upon as many separate lots of land, to-wit: the east thirty-two feet of lot 2, and all of lots 3, 6, 7, and 8 in block 70 in the city of Omaha. The several actions were consolidated by order of the district court and tried together. From the judgment of the district court the plaintiff appeals. From the bill of exceptions it appears that on the 8th day of September, 1875, the property above described was sold by the treasurer of Douglas county to plaintiff for delinquent taxes and that treasurer's deeds were subsequently executed in his favor. The deeds aforesaid it is conceded are void on account of informalities in their execution. Plaintiff has also paid taxes subsequently assessed against each of said lots. In the action involving lot 3 Jackson B. Whittier is made a defendant since he also claims a lien by reason of a subsequent purchase for delinquent taxes. He answered setting up his lien and praying for a decree of foreclosure. There is no controversy with respect to the purchase of the property for delinquent taxes, or the amounts of the payments therefor, by plaintiff or Whittier. The defenses relied on are two in number and will be noticed in the order presented.

"First--That the proceedings of the assessor and other officers preceding the charging of the taxes upon the books of the city and county treasurers were irregular and of so defective a character as to render the taxes charged void and not a lien upon the property."

The principal objections to the proceedings are that the property was not listed by the owner, and no refusal to list, or other reason why not so listed, was given by the assessors; that the assessor's oath was not attached to the rolls; that the name of the owner was not, in most instances, given, and, in such instances, that the lots were not assessed as unknown, and other like irregularities. No claim is made to the effect that the amounts charged were excessive, or that the payment thereof would burden the defendant beyond his fair proportion of the taxation required for the needs of the public. It has been frequently held by this court that in equitable proceedings to foreclose liens for taxes we will not consider objections which go only to the manner of the assessment, or the levy of the tax, or the conducting of the sale. (See Otoe County v. Mathews, 18 Neb. 466, 25 N.W. 618; Lammers v. Comstock, 20 Neb. 341, 30 N.W. 251; Merriam v. Dovey, 25 Neb. 618, 41 N.W. 550.) These cases are in point and are conclusive of the question.

The second defense is that the property in question has no legal existence, for the reason that no such description of land is anywhere recorded. The material facts, as shown by the bill of exceptions, are as follows: Early in the year 1854 several citizens of the state of Iowa associated themselves together under the corporate name of the Council Bluffs and Nebraska Ferry Company, for the purpose of locating a town on a site within the present boundaries of the city of Omaha. For that purpose they employed A. D. Jones to make a survey of the premises. At that time Nebraska had just been organized as a territory, but no part thereof had been surveyed by the government.

Mr. Jones began his work on the west bank of the Missouri river, near what is now known as Iler's distillery, from thence he ran a line west to Sixteenth street, and from thence north and west to about Byron Reed's present addition to the city, and from thence directly north to Webster street, and from thence east to the Missouri river, and thence along the line of the river south to the place of beginning. The claim thus laid out was known as the claim of the Council Bluffs and Nebraska Ferry Company. Afterwards the company employed Jones to survey a part of this claim into lots and blocks, streets and alleys; he did so, and made a plat of the area now lying between Jackson street on the south, Webster street on the north, Ninth street on the east, and Sixteenth street on the west. He made a manuscript plat thereof, and the town which he thus laid out was called Omaha. He designated the corners of lots and blocks and streets and alleys with hardwood stakes driven into the ground. Such stakes remained in existence for many years thereafter, and many of them up to a comparatively recent date, but at the present time all have rotted away or have been otherwise destroyed. According to this survey and the plat subsequently prepared by Mr. Jones, block 70, the property in controversy, was subdivided into eight lots fronting endwise toward the east and west. The dimensions of the lots and blocks were not indicated on the plat, but from the bill of exceptions it appears that the lots were sixty by one hundred and thirty-two feet in size. Block 70, as shown by the Jones plat and all subsequent plats and maps of the city, is bounded as follows: On the east by Ninth street, on the west by Tenth street, on the south by Capitol avenue, and on the north by Davenport street. From the plat or manuscript map aforesaid the first printed map of Omaha was copied, and which has since been known as the A. D. Jones map. In the year 1855 the company aforesaid caused another plat to be made, embracing the area surveyed by Jones and including other contiguous territory, all of which they called the plat of Omaha city. That part surveyed by Jones was not resurveyed, and there never has been a survey for the purpose of designating streets and alleys, lots and blocks, other than that of Mr. Jones. Upon the plat of the second survey and the map subsequently issued in accordance therewith no dimensions of lots or streets and alleys appear. Upon it block 70 is designated as on the first or Jones map, subdivided into eight lots, but fronting endwise toward the north and south instead of the east and west as on the Jones map. In 1857 another map was printed, known as the Poppleton & Beyers map, purporting to embrace the same area as the former maps. On this map block 70 appears as on the Jones map, except that the lots front endwise to the north and south as in the last named map. Afterward a map was issued by O. F. Davis, which, with respect to block 70, followed that of Poppleton & Beyers'. It appears that the two maps last named were in common use during a limited time only. They were followed by maps issued by Byron Reed and Geo. P. Bemis, which, as regards block 70, conform to the Jones survey and map. Subsequent maps have followed the Jones survey. During the years when the taxes in controversy were levied, either the Reed map, or others subsequently issued, but conforming to the Jones survey, have been in general use in the city.

Shortly after the Jones survey the land included therein was entered in trust for the owners and occupants thereof, by the mayor of Omaha, who subsequently conveyed the property, designating the lots and blocks as indicated by the Jones map. In the summer of 1855 defendant Estabrook took possession of the lots in controversy, and...