South Platte Land Co. v. Buffalo County

• Decision Date: 29 May 1884
• Citation: 19 N.W. 711,15 Neb. 605
• Parties: SOUTH PLATTE LAND COMPANY, PLAINTIFF IN ERROR, v. BUFFALO COUNTY, JOSEPH SCOTT, TREASURER, AND THE CITY OF KEARNEY, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

19 N.W. 711

15 Neb. 605

SOUTH PLATTE LAND COMPANY, PLAINTIFF IN ERROR, v. BUFFALO COUNTY, JOSEPH SCOTT, TREASURER, AND THE CITY OF KEARNEY, DEFENDANTS IN ERROR

Supreme Court of Nebraska

May 29, 1884

ERROR to the district court for Buffalo county. Tried below before GASLIN, J.

AFFIRMED.

Marquett Deweese & Hall, for plaintiff in error.

E. M Cunningham, for Buffalo County and Scott, Treasurer, and J E. Gillespie, for City of Kearney, defendants in error.

OPINION

MAXWELL, J.

This is an action to enjoin certain taxes levied by the city of Kearney upon sec. 31, t. 9, r. 15, sec. 11, t. 8, r. 16, sec. 2, t. 8, r. 16, in Buffalo county, it being alleged in the petition that said land is not within the limits of Kearney City. On the trial of the cause in the court below there was a finding and judgment for the defendant. The plaintiff brings the cause to this court by petition in error.

To sustain the action in the court below, the plaintiff, with other evidence, offered the following:

"GIBBON, NEBRASKA, Nov. 30th, 1872.

"Adjourned meeting board of county commissioners. Present, Commissioners McClure, Walsh, and Crowell. Minutes of meeting of Nov. 26th were read and approved. Petition of citizens of Kearney Junction praying to be incorporated into a town to be known as Kearney, to include the following described lands, viz.: Secs. 1, 2, 3, 10, 11, 12, township 8, range 16, and secs. 24, 25, 26, 27, 34, 35, and 36, township 9, range 16 west, and secs. 6 and 7, township 8, range 15, and secs. 30 and 31, township 9, range 15, and also the territory extending southward from the main land in front of said secs. 10, 11, and 12, town 8, range 16, and sec. 7, town 8, range 15, of the same width to channel of the Platte river was received, and on motion agreed to, and the appointment of the following trustees ratified: John Mahon, S. B. March, L. R. More, E. B. Carter, J. H. Chandler." Also an order for the incorporation of the town of Kearney, in which are the following recitals: "And said board being satisfied that said petition was signed by a majority of the taxable inhabitants residing within said limits or boundaries at the date thereof, and it appearing to said board that said inhabitants ought of right to be incorporated into a town with said boundaries, with a police established for their local government, it is therefore ordered that the inhabitants residing within the following limits or boundaries [giving the same descriptions of land as above set forth] are hereby declared to be an incorporated town, and from henceforth they shall be a body politic and corporate by the name and style of the town of Kearney," etc.

It appears from the testimony of Mr. Hamer, a witness called by the plaintiff, that the entire population of Kearney at that time would not exceed three hundred; that about one-half of these persons were residing on section one, and the others on two adjoining sections. Section one appears to have been platted, and also a portion of an adjoining section, but the remaining sections were vacant or claimed and cultivated largely by persons who were doing business in the town. The town was incorporated under the act of 1866 sec. 1 of which reads as follows: "If a majority of the taxable inhabitants of any town within this territory shall present a petition to the commissioners of the same county in which said town is situated, praying that they may be incorporated, and a police established for their local government, designating the name they wish to assume, and if such commissioners shall be satisfied that a majority of the taxable inhabitants of such town have signed a petition, they may declare the town incorporated, and thenceforth the inhabitants within such bounds shall be a body politic and corporate by the name and style of the town of [naming it], and they and their successors shall be known by that name in law, and...