State ex rel. Union Pacific Railway Company v. Colfax County

Decision Date17 March 1897
Docket Number7136
Citation70 N.W. 500,51 Neb. 28
PartiesSTATE OF NEBRASKA, EX REL. UNION PACIFIC RAILWAY COMPANY, v. COLFAX COUNTY
CourtNebraska Supreme Court

ERROR from the district court of Colfax county. Tried below before SULLIVAN, J. Affirmed.

AFFIRMED.

J. M Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

George H. Thomas and E. T. Hodsdon, contra.

OPINION

NORVAL, J.

The Union Pacific Railway Company and others presented a petition to the board of county commissioners of Colfax county on April 25, 1892, under article 1, chapter 89 Complied Statutes, praying the location and construction of a drainage ditch over and across the lands of the petitioners. The commissioners entered the following orders on their record relating to said petition:

"SCHUYLER, NEB., April 26, 1892.

"The board of county commissioners met pursuant to adjournment. All members present, and clerk.

"The clerk having delivered a copy of said petition as provided by statute in the matter of location, construction, etc., of ditches to the board of commissioners, they thereupon took to their assistance E. E. Greenman, county surveyor, and at once proceeded to view the line of the proposed improvement, and after having been out all day viewing said proposed improvement and having returned late, the board adjourned to meet next morning at 9 o'clock A. M."

"SCHUYLER, NEB., April 27, 1892.

"The board of commissioners met pursuant to adjournment. All the members present, and clerk.

"In the matter of the location, construction, etc., of the ditches, the board made the following report:

"'Whereas the location, construction, and maintenance of the ditch, drain, and excavations therein referred to are necessary to drain the land described in a copy of the petition attached to this report and heretofore recorded, do find, determine, and report that said improvement is necessary and will be conducive to the public good, health, convenience, and welfare, and beneficial to certain lands and property; and we do hereby order the county clerk to enter this our report upon the journal.

"'Dated this 27th day of April, 1892.

"'WILLIAM MCROE,

"'G. FOLKEN,

"'JAMES LOOGLEY,

"'The Board of County Commissioners of Colfax Co.'"

Subsequently, at an adjourned meeting held on May 9, 1892, the board made and caused to be entered on its journal an order directing the county surveyor to go upon the line described in the petition, and survey, level, and stake the same, and make a report, profile, and plat thereof, and do and perform the other matters and things required by sections 7, 8, and 9 of said article and chapter. The surveyor complied with said order and filed his report with the county clerk on June 27, 1892. A date was fixed for a hearing on said report, and notice thereof was given in accordance with section 10 of said chapter. Claims for damages on account of said ditch were duly filed to the amount of $ 9,093, and at the time so fixed for the hearing the county commissioners convened in session, and then determined that the requisite notice had been given of the hearing and the report, and after listening to the argument of counsel for certain persons who had filed exceptions and objections against the proposed ditch, the board adjourned to meet the next morning, at which time it made and caused to be entered of record the following:

"SCHUYLER, NEB., August 9, 1892.

"The board of county commissioners met pursuant to adjournment. Present, full board and clerk.

"In the matter of the petition of the Union Pacific Railway Company and others for the opening of drainage ditches, filed on the 25th day of April, 1892, and set down for hearing on the 26th day of July, 1892, and continued to this day, came on for hearing, and after hearing testimony and argument of counsel, and after being fully advised in the premises, the board finds that the ditches described in the said petition are not necessary and would not be conducive to the public health, benefit, and welfare, and that no lots or lands would be benefited thereby. It is therefore ordered that the said petition and action be dismissed, and that no further proceedings be made or had in the premises, and that the costs of this proceeding be charged up and collected from the parties whose names appear on the bond herein filed."

Thereafter the Union Pacific Railway Company, by proceedings instituted in the district court of Colfax county in the nature of certiorari, obtained a reversal and vacation of the said order of the county board last aforesaid, and said commissioners having refused to construct said ditch, relator instituted mandamu...

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