OPINION
NORVAL, C. J.
This
suit was commenced in the district court of Dakota county by
the Sioux City Bridge Company, to enjoin the collection of
taxes assessed upon a certain bridge and its approach, the
property of plaintiff, by the authorities of the village of
South Sioux City. A portion of section 22, township 29, range
9, is included in the corporate limits of said village, and
is bounded on one side by the Missouri river, the government
survey having followed the meanderings of the river.
Plaintiff's bridge crosses the Missouri river at this
point, and its western end is adjacent to this portion of
section 22. To reach the bridge an approach of considerable
length is required, a large portion of which, at least, is
within the corporate limits of said village. The whole of
said approach and the west half of said bridge were assessed
as being within the corporate limits of the village for the
years 1896, 1897, 1898 and 1899, and said company brought
this suit to restrain the collection of them, claiming that
the whole of said taxes was void, for the alleged reason that
said bridge and a portion at least of said approach were
without the jurisdiction of the village. On trial, the
following findings of fact were entered, decree being had
thereon accordingly:
"1.
The court finds that the plaintiff's bridge described in
the petition filed herein consists of the bridge structure of
spans supported by five piers and an approach, the approach
being composed of dirt embankment and trestle-work over which
the traffic is conducted to the bridge proper.
"2.
The court finds that the west pier of said bridge, being the
pier described in the testimony as 'pier five,' is
situated about eight feet easterly from the meander line of
the Missouri river at said point, which meander line is the
eastern boundary of section twenty-two (22) in [township]
twenty-nine (29) of range nine (9) east of the 6th P. M. in
Dakota county Nebraska.
"3. The court finds that in the year 1858, at
the time the said meander line was surveyed, marked and fixed
by the government surveyors and for some time subsequent
thereto the high-water bank at the point where said bridge
crosses said river was located under or easterly from the
present location of said 'pier five.'
"4.
The court finds that in 1887, at the time of the building of
said bridge and at the time of the location of said 'pier
five,' the high-water bank of said river was about ninety
(90) feet westerly from said 'pier five' and that
said high-water bank has continued practically unchanged as
to its distance from said pier until the present time and is
now about ninety (90) feet westerly from said 'pier
five.'
"5.
The court finds that there is an artificial embankment
constructed during the building of said bridge and subsequent
thereto, running from said 'pier five' back to the
said high-water bank over which the high water from said
Missouri river has never flowed since it was erected in 1888
but the waters from the river at its high stages flow back to
the high-water bank on each side of said artificial
embankment.
"6.
The court finds that in the year 1888, during the spring rise
of said Missouri river, the water was entirely around and
covered the present site of said 'pier five' and that
in the fall of said year there was no water around the
present site of said 'pier five' and that the low
water mark of said Missouri river at the place where the said
bridge is located is and has always been easterly from said
'pier five.'
"7.
The court finds that for the year 1896 no return or schedule
of property was returned by the plaintiff or by any person
for it to the assessor for assessment. That the assessor as
by law required returned the said property for assessment as
one bridge and that prior
to the filing of this case no appeal was ever prosecuted,
which changed or complained of said assessment and return
made by said assessor.
"8. The court finds that the approach of said
bridge except a small portion thereof, is within the village
of South Sioux City, Dakota county, Nebraska.
"9.
The court finds that for the years 1897, 1898 and 1899 the
plaintiff by its agent has returned said bridge for
assessment under two heads as follows:
'Bridge,
$ 72,000.00.
'Approach
to bridge, $ 3,000.00.'
and
that the assessor and officers of said county of Dakota have
listed and assessed the same as if all of said bridge and
approach were within the corporate limits of said village of
South Sioux City.
"10.
The court finds that the plaintiff has never tendered to the
defendant county, or its treasurer, or any one for it, the
taxes justly due the said village of South Sioux City, nor
have the same been tendered to the said village, or to any
one for it, except as the same are tendered by the amended
answer filed in this case during the progress of the trial.
"11.
The court finds that the tax listed, assessed and levied
against bridge property and the plaintiff for the year 1896
is a proper charge, and that the injunction heretofore
granted restraining its collection should not have been
granted and should now be dissolved.
"12.
That the taxes listed, assessed and levied against the
approach of said bridge for the years 1897, 1898, and 1899,
was and is a proper charge against said approach and the
plaintiff, and the injunction heretofore granted restraining
the collection should not have been granted and should now be
dissolved as to the tax against the approach for said years.
"13.
The court finds that the taxes listed, assessed and levied
for village purposes for the years 1897, 1898 and 1899 upon
the valuation of that portion of said bridge resting upon the
piers is not a proper charge against said property or against
the plaintiff and that the plaintiff is entitled to an
injunction as to the tax levied or listed for such purposes
against said portion of said bridge structure."
Upon the findings the lower court rendered a decree
that the whole tax for the year 1896 was valid, and therefore
refused an injunction as to the collection of the tax for
that year. As to the subsequent years involved in the
litigation, the court decreed that the bridge being without
the limits of the village, the tax upon it was void, and the
defendants were accordingly enjoined from collecting the
same. As a large portion of the approach was within the
corporate limits of the village, the tax as levied for those
years upon that structure was decreed valid, and the court
refused to enjoin their collection. From this decree both
parties appeal to this court, and the whole case is before us
for consideration.
It will
be noted that the findings numbered 2, 3, 4, cause the
principles of law governing this case to fall within the
decision in Chicago, B. & Q. R. Co. v. Cass County
supra, wherein it was held that a railroad bridge, no...
