Traver v. Merrick County

• Decision Date: 22 May 1883
• Citation: 15 N.W. 690,14 Neb. 327
• Parties: ISAAC TRAVER, PLAINTIFF IN ERROR, v. THE BOARD OF COUNTY COMMISSIONERS OF MERRICK COUNTY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

15 N.W. 690

14 Neb. 327

ISAAC TRAVER, PLAINTIFF IN ERROR, v. THE BOARD OF COUNTY COMMISSIONERS OF MERRICK COUNTY, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 22, 1883

ERROR to the district court for Merrick county. Tried below before GEORGE W. POST, J.

AFFIRMED.

John Patterson, for plaintiff in error, cited: Weismer v Village of Douglas, 64 N.Y. 99. Allen v. Inhabitants of Jay, 60 Me. 124. Brick Company v. Inhabitants of Brewer, 62 Me. 62. National Bank of Cleveland v City of Iola, 9 Kas., 689. Curtis v. Whipple, 24 Wis. 350, 354, 355. Weeks v. Milwaukee, 10 Wis 242, 263. Lowell v. Boston, 111 Mass. 454. Jenkins v. Andrews, 103 Mass. 94. Memphis Freight Company v. Memphis, 4 Caldw. (Tenn.), 419, 425. 20 Wall. 655. Dawson County v. McNamar, 10 Neb. 276. Guernsey v. Township, 4 Dill., 372.

A. J. Poppleton (W. H. Webster with him), for defendants in error, cited: Leavenworth v. Miller, 7 Kan. 527. Comp. Stat., 355. U. P. R. R. v. Colfax Co., 4 Neb. 455. Fremont Building Ass'n v. Sherwin, 6 Neb. 48. Burlington v. Beasley, 94 U.S. 313.

MAXWELL, J. COBB, J., dissented.

OPINION

MAXWELL, J.

This is an action to enjoin the defendant from levying taxes to pay certain bonds issued to J. G. Brewer to aid in the erection of a water grist mill in Merrick county. The defendants demurred to the petition, and the demurrer was sustained and the action dismissed.

It is alleged in the petition in substance that on or about the 1st day of February, 1872, the county commissioners of Merrick county submitted to the electors thereof the question of voting bonds to said Brewer in the amount of $ 6,000, to draw interest at 10 per cent, to aid in the erection and maintenance of a flouring and grist mill at or near Lone Tree, now Central City, in said county; that said proposition was adopted and the bonds issued and sold and the mill erected as provided; that said commissioners are about to levy $ 5,000 to pay the amount due on the principal of said bonds, and the further sum of $ 600 as interest thereon.

It is also alleged that the bonds on their face show that they were issued for an illegal purpose. The bonds are in the following form:

MILL BOND.

UNITED STATES OF AMERICA.

MERRICK CO. MILL BOND, STATE OF NEBRASKA.

Ten years after date, for value received, the county of Merrick, in the State of Nebraska, promises to pay or bearer,

ONE HUNDRED DOLLARS,

Lawful money of the United States, at the office of the County Treasurer of said county, with interest at the rate of ten per cent per annum from date until paid; said interest payable at the "National Park Bank" in the city of New York semi-annually, on the 1st day of August and 1st day of February in each year, on the presentation of the coupons hereto annexed. This bond is one of a series of sixty of like tenor, date, and amount, issued as a loan to the said James G. Brewer to aid him in building a public grist mill and water power in said county of Merrick, on section thirty-one (31), township thirteen (13) north, range six (6) west, authorized by the laws of the state of Nebraska, and issued pursuant to a vote of the legal voters of said county, at a special election regularly held on the 9th day of January, A.D. 1872, authorizing their issue, and providing for the payment of the principal and interest at maturity.

In testimony whereof, we, the county commissioners of said county, have hereunto subscribed our names, and have caused this to be attested by the county clerk of said county, with the seal thereof hereto affixed, and the annexed coupons signed by said county clerk.

Dated at Lone Tree, Nebraska, February 1st, 1872.

The question for determination is, is a water grist mill a work of internal improvement within the meaning of the statute?

The act of February 15th, 1869, provides as follows:

"Sec. 1. That any county or city in the state of Nebraska is hereby authorized to issue bonds to aid in the construction of any railroad, or other work of internal improvement, to an amount to be determined by the county commissioners of such county or the city council of such city, not exceeding ten per centum of the assessed valuation of all taxable property in said county or city; Provided, The county commissioners or city council shall first submit the question of issuing such bonds to a vote of the legal voters of said county or city, in the manner provided by chapter nine of the Revised Statutes of the state of Nebraska, for submitting to the people of a county the question of borrowing money."

Section 2 provides that: "The proposition of the question must be accompanied by a provision to levy a tax annually for the payment of the interest on said bonds as it becomes due; Provided, That an additional amount shall be levied and collected to pay the principal of said bonds, when it shall become due; and Provided further, That no tax shall be levied or collected to pay any of the principal of said bonds until after the year 1880."

The act relating to mill dams, which took effect Feb. 26, 1873, provides as follows:

"Section 1. If any person desiring to erect a dam across any water-course for the purpose of building a water, grist, saw, carding, or fulling mill, or of erecting any machinery to be propelled by water, be the owner of the lands on which he desires to build such mill or erect such machinery, on one side of such water-course and not of the lands on the opposite side against or upon which he would abut his dam; or, if any person be the owner of the lands on which he desires to erect any such mill or machinery on both sides of such water-course; or, if any person shall have erected such mill and mill-dam on his own lands, he may file a petition for leave to build or continue such mill-dam and for a writ of ad quod damnum in the district court of the county where such lands lie, against the owners or proprietors of the lands above and below such dam, which are or probably will be overflowed or injured thereby, or against or upon which he may desire to abut a dam."

Section 2 provides that: "The plaintiff shall set forth in his petition, as near as may be, the place where such dam is built, or proposed to be built, the height or proposed height of such dam, the kind of mill built or proposed to be built, his title to the lands whereon he has erected or proposes to erect such mill or machinery, whether legal or equitable, and shall describe with certainty the lands above and below the dam, the property of others which are or will probably be overflowed or injured as aforesaid, and shall give the name of the owner of each tract, or if the name of any such owner be unknown, the plaintiff shall so state in his petition."

Section 24 provides that: "When the water backed by any mill-dam belonging to any mill or machinery is about to break through or over the banks of the stream, or to wash a channel so as to turn the water of such stream, or any part thereof, out of its bed or ordinary channel, whereby such mill or machinery will be injured or affected, the owner or occupier of such mill or machinery, if he do not own such bank or banks, or the lands lying contiguous thereto, may, if necessary, enter thereon, and erect and keep in repair such embankments fortifications, and other works, as shall be requisite to prevent such water from breaking through or over the banks of such stream, or washing a channel as aforesaid, such owner or occupier committing...