Sage v. City of Plattsmouth
| Decision Date | 19 May 1896 |
| Docket Number | 8027 |
| Citation | 67 N.W. 455,48 Neb. 558 |
| Parties | ELIAS SAGE ET AL., APPELLEES, v. CITY OF PLATTSMOUTH ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Cass county. Heard below before CHAPMAN, J.
REVERSED AND DISMISSED.
John A Davies, for appellants.
Beeson & Root, contra.
The petition of Elias Sage and Caroline Sage, his wife plaintiffs, against the city of Plattsmouth and Louis Eickhoff, treasurer of Cass county, defendants, in brief alleged that the city of Plattsmouth was originally incorporated by a special act of the territory of Nebraska in 1855, which act defined the limits of the city and conferred no power to extend such limits; that this act was amended in 1866 so as to include certain other territory, but without conferring power upon the city to further extend its limits; that the plaintiffs are the owners of certain land described in the petition, occupied by them as a homestead, used as one tract for agricultural purposes alone; that neither said lands nor the plaintiffs receive any benefit from the city of Plattsmouth, and that the city affords them neither water nor gas or electric lights; nor does it afford them police protection; that the city, without the knowledge or consent of the plaintiffs, in March, 1887, passed an ordinance defining the limits of the city and including therein plaintiffs' land, and caused a copy of said ordinance to be recorded in the office of the register of deeds; that none of the said land had ever been laid out into lots or blocks; that city taxes had been assessed and levied upon said land from and after 1887 every year, casting a cloud upon the title thereof; that the defendant, the county treasurer, was about to advertise and sell said land for said city taxes. The prayer was that the ordinance of 1887 be declared null and void in so far as it attempts to include plaintiffs' land within said city; that the cloud cast upon plaintiffs' title by the passage of said ordinance be removed; that all city taxes levied upon said lands be declared void, and that the treasurer and his successors be enjoined from collecting any city taxes whatever upon said land. The treasurer answered by a general denial; the city by a general denial, coupled with an averment that the land described was lawfully incorporated within the city. There was also an issue raised as to the classification of the city, the plaintiff contending that it was a city of the second class having more than 1,000 inhabitants, and governed by chapter 14, article 1, Compiled Statutes, and the defendants contending that it was a city of the second class having more than 5,000 inhabitants, and governed by chapter 14, article 2, Compiled Statutes. The court found that it was a city of the latter class, but found on other issues generally in favor of the plaintiffs, and entered a decree in accordance with the prayer of the plaintiffs' petition. The defendants appeal.
We cannot in this proceeding investigate and determine the principal question sought to be litigated. In South Platte Land Co. v. Buffalo County, 15 Neb. 605, 19 N.W 711, it was sought to enjoin the collection of certain taxes levied on behalf of the city of Kearney upon certain land within the established limits thereof. The injunction was sought upon the ground that the land taxed was agricultural land which had not been surveyed and platted into lots. The court said: "There is no doubt the owners of land not platted may object to such land being included within the boundaries of the corporation, and in a proper proceeding for that purpose may have it excluded; but if the boundaries of a town are extended over agricultural lands on the petition of the owner, or with his tacit assent, and have included such lands without objection for ten or twelve years, there must be some equitable ground for an injunction aside from the mere fact that the lands were improperly included in the town site." The injunction was therefore refused. It is true that nothing appeared in that case except that the lands had not been platted into city lots; and the language quoted, taken by itself, implies that an injunction might be granted where other grounds for equitable relief appear. But in McClay v. City of Lincoln, 32 Neb. 412, 49 N.W. 282, the plaintiffs had paid certain city taxes under protest, and brought the action to recover back the money, alleging generally the same grounds for relief as are here alleged. The court said: "While it is probably true that the action of the commissioners in taking the ground into the boundaries of the town was unauthorized under section 40 of chapter 14, Compiled Statutes, and would not have been conceded by the courts, at that day, as a legal proceeding, had a proper case been made and brought to issue, and while the commissioners themselves might...
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