The Overton Bridge Company v. Means

• Decision Date: 27 January 1892
• Citation: 51 N.W. 240,33 Neb. 857
• Parties: THE OVERTON BRIDGE COMPANY, APPELLANT, v. JOHN L. MEANS ET AL., APPELLEES
• Court: Nebraska Supreme Court

51 N.W. 240

33 Neb. 857

THE OVERTON BRIDGE COMPANY, APPELLANT, v. JOHN L. MEANS ET AL., APPELLEES

Supreme Court of Nebraska

January 27, 1892

APPEAL from the district court for Dawson county. Heard below before HAMER, J.

REVERSED AND REMANDED.

C. W McNamar, for appellant:

There is no statutory provision in this state for the sale of a highway or bridge; and if it is the property of a corporation to the extent of having the mere right of tolls, that would not make it salable. (Seymour v. M. & T. Co., 10 O 476, 480.)

O. A Abbott, contra:

Property essential to corporate franchises was formerly inalienable because all corporations were created directly by the legislature, thus being recognized as public, while a special trust was reposed in the corporators. A different system of incorporation prevails in this state, and the old rule as to alienation should cease with the reason therefor. Except in the case of competing railway lines, our statutes impose no restrictions on the sale of corporate property. Even if the property cannot be sold under a common law execution, it can be disposed of by court of equity. Appellant's citations are not in point.

OPINION

POST, J.

The plaintiff, The Overton Bridge Company, is a corporation organized for the purpose of constructing and maintaining a toll bridge over the Platte river near the village of Overton, in Dawson county. In the fall of 1886 it entered into a contract with the defendant Means, in pursuance of which the latter erected the bridge in controversy, on the range line between the ranges 19 and 20. Soon after the completion of said bridge the proper authorities of Dawson and Phelps counties opened a road along said range line and over said bridge, and said bridge has been used by the public ever since as a highway. For the purpose of assisting in the building of said bridge, Overton precinct, in Dawson county, voted to issue the bonds of said precinct in the sum of $ 6,000. Said bonds were subsequently issued and delivered to the plaintiff company, and by it turned over to defendant Means in part payment of the amount due under his contract. There being a further sum due on said contract, defendant brought suit in the district court of Dawson county, and on the 26th day of April, 1888, recovered judgment against the plaintiff company for $ 2,681 and costs. Afterward an execution was issued and placed in the hands of the defendant Taylor, as sheriff of Dawson county, who levied upon the bridge in controversy as real estate to satisfy said execution, said company having no other property. The plaintiff thereupon filed its petition in the district court of Dawson county, by which it seeks to have defendant perpetually enjoined from selling said bridge to satisfy the aforesaid judgment. On final hearing, the district court entered a decree enjoining the sale of the bridge on said execution, but ordered the defendant Taylor, as a special master, to sell said bridge and all the rights of the plaintiff company to maintain the same, including its franchise, for the purpose of satisfying the judgment aforesaid. From that decree plaintiff has appealed to this court.

We have not been referred to any provision of statute which will authorize the seizure...