State ex rel. Hammond v. Dimond

• Decision Date: 05 March 1895
• Citation: 62 N.W. 498,44 Neb. 154
• Parties: STATE EX REL. HAMMOND v. DIMOND ET AL.
• Court: Nebraska Supreme Court

44 Neb. 154

62 N.W. 498

STATE EX REL. HAMMOND

v.DIMOND ET AL.

Supreme Court of Nebraska.

March 5, 1895.

Syllabus by the Court.

1. The provision of section 40, c. 14, Comp. St., for the incorporation of villages “whenever a majority of the taxable inhabitants of any town or village not heretofore incorporated under the laws of this state shall present a petition to the county board,” applies to villages in the ordinary and popular sense of the term, and was not intended to clothe large rural districts with extended municipal powers, or subject them to special taxation for purposes to which they are in no wise adapted.

2. Lands adjacent to a town or village may be incorporated therewith, provided they are in such close proximity thereto as to be suburban in character, and have some unity of interest with the platted portion in the maintenance of municipal government. But the statute does not contemplate the incorporation of remote territory, having no natural connection with the village, and no adaptability to municipal purposes. State v. Village of Minnetonka (Minn.) 59 N. W. 972.

3. The provision of section 101, c. 14, Comp. St., for the disconnecting of territory from a city or village by petition, is available only to legal voters of the territory sought to be detached.

4. The owner of agricultural lands illegally included within the boundaries of a city or village, who is not a voter therein, may maintain proceedings by quo warranto for the purpose of determining the validity of the act of incorporation.

5. The effect of a continued user of corporate powers in such a case not presented by the record, and not determined.

Appeal from district court, Lancaster county; Strode, Judge.

Proceedings on the relation of Charles Hammond against F. N. Dimond and others. Judgment for defendants, and relator appeals. Reversed.Daniel F. Osgood, for appellant.

Morning & Berge, for appellees.

POST, J.

This was a proceeding in the nature of a writ of quo warranto in the district court for Lancaster county. The object of the proceeding was to test the legality of the alleged incorporation of the city, formerly the village, of College View, in said county. A general demurrer to the petition was sustained, and, final judgment having been entered thereon, the cause was removed into this court for review upon the petition in error of the relator.

The only question presented being the sufficiency of the petition to entitle the relator to relief, it is deemed proper to here copy it at length, omitting caption and conclusion, viz.: “(1) The relator is the owner of the northwest quarter of the southeast quarter of section six (6), township nine (9) north, of range seven (7) east, in Lancaster county, Nebraska, and has been the owner of said land ever since the 15th day of February, 1887, which has ever since said time been farm land, and used as such. (2) The defendants F. N. Dimond, C. W. Nicola, Joseph Sutherland, J. A. Childs, L. F. Soucey, F. A. De Wolf, and Josephus Hobbs, representing and acting as mayor and council for the defendant the city of College View, are, without authority of law, exercising and usurping the rights and duties of mayor and council of the city of College View, county of Lancaster, and state of Nebraska, and are passing ordinances and levying taxes without legal authority therefor. (3) Your relator alleges the fact to be that there is no such incorporated city or municipality as the city of College View. (4) Your relator alleges that the following tract or parcel of land in section five, township nine north, of range seven east, to wit, the southwest quarter, and the south half of the southeast quarter, and the north half of the southeast quarter of section five, township nine, range seven east, Lancaster county, Nebraska, was platted as College View; that afterwards, to wit, on the 25th day of April, 1892, two-thirds of the residents of the platted tract of College View and the other land hereafter described presented to the county commissioners of Lancaster county, Nebraska, a petition for the incorporation of the village of College View, but said petition described the territory intended to be incorporated in said village, which was as follows: The west one-half of sections four and nine, all of sections five and eight, and the east one-half of sections six and seven, in township nine north, of range seven east of the sixth principal meridian, Lancaster county, Nebraska, containing four sections of land, which include the land above described, owned by your relator, together with about 2,240 acres of other land, which was used for farming purposes, and was not platted as an addition or subdivision, nor were there any residents upon the land above described, owned by your relator, nor was there land platted or occupied for one-half mile or more between the above-described land of your relator and the platted land or tract named ‘College View.’ And the said commissioners of Lancaster county, Nebraska, acting without authority of law, did, on the 28th day of April, 1892, pretend to incorporate the village of College View, including within the metes and bounds in said pretended incorporation the land of your relator, above described, as well as about 2,240 acres of land not platted or subdivided, but being farm land. Such action of the county commissioners was without authority of law and illegal, and was without any notice to your relator, nor did he have any knowledge of the said pretended incorporation and the alleged corporation of the municipality of College View, until about the month of April, 1894, when your relator applied to pay his taxes on the above-described land to the county treasurer of Lancaster county, Nebraska, when he was informed by the said county treasurer that there was the sum of $15 corporation tax against said land, levied by the alleged corporation or municipality of the city of College View.”

The petition will be more readily understood from the following map of the six sections therein named, the shaded parts being the relator's premises in section 6, and the platted portion of the village, to wit, the south half of section 5. The boundaries of the village as incorporated are shown by the dark lines extending through sections 6 and 7 and 4 and 9.

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It is boldly asserted that there exists no authority, by virtue of statute or otherwise, in the state, for the inclusion within the boundaries of a city or village of a large tract of rural territory having no natural connection therewith, and which, as in this case, is in no wise adapted to city or village purposes. A subject of such recognized importance, it might be supposed, has been definitely settled by judicial opinion, in the absence of positive statute. But an examination of the cases proves that the precise question has seldom been presented for determination by the courts. The incorporation of cities of the second class and villages is regulated by the provisions of section 40, c. 14, Comp. St., which reads as follows: “Any town or village containing not less than two hundred nor more than...