Village of Hartington v. Luge

• Decision Date: 04 January 1892
• Citation: 50 N.W. 957,33 Neb. 623
• Parties: VILLAGE OF HARTINGTON, APPELLEE, v. LUGE ET AL., APPELLANTS
• Court: Nebraska Supreme Court

50 N.W. 957

33 Neb. 623

VILLAGE OF HARTINGTON, APPELLEE, v. LUGE ET AL., APPELLANTS

Supreme Court of Nebraska

January 4, 1892

APPEAL from the district court for Cedar county. Heard below before NORRIS, J.

REVERSED AND REMANDED.

J. M Cleland, H. A. Miller, W. C. Miller, and Hugh Roberts (Davis Gantt & Keatley, of counsel), for appellants.

Wilbur F. Bryant, contra.

OPINION

MAXWELL, J.

The plaintiff filed a petition against defendants as follows:

"The plaintiff for cause of action alleges:

"1st. That it is a corporation existing under the laws of the state of Nebraska and lying and being in section 36, township 31 north, of range 1 east, in said county, and desires to annex to its corporate limits the contiguous territory hereinafter described, and that for the purpose of such annexation of such territory the trustees of said corporation, plaintiff herein, did, on the 14th day of January, A. D. 1887, at a special meeting of said trustees held in said village of Hartington, vote upon the question of such annexation of such contiguous territory, and a resolution to annex such territory, to-wit, the west half of said section 36 and the west half of the east half of said section 36, T. 31 N., R. 1 E., not now included within the corporate limits of the said village of Hartington, was adopted by a two-thirds vote of all the members elect of such board of trustees.

"2d. The said plaintiff further shows and represents unto your honor that the defendants, Henry Luge, M. E. Luge, E. L Dimick, H. A. Moore, T. L. Curris, Albert Street, George F Scoville, Mrs. Letta Thomas, T. G. Thomas, August Lubeley, the Chicago, St. Paul, Minneapolis Omaha Railway Company, and the Northern Nebraska Land Improvement Company are the only owners of said territory, and the only owners of said territory. That an accurate map of the same, showing the subdivisions of said territory, together with its relative positions of such said village of Hartington, is hereto attached, marked exhibit 'A,' and prayed to be taken as a part of this petition.

"3d. The plaintiff further says that for the purpose of protection from fire, preserving health, order, cleanliness, of said village, and for the purpose of helping to raise the revenue or taxes to help defray the expenses of said village, would in justice and equity require the annexation of said territory to said village.

"4th. The plaintiff further shows unto your honor that other material benefit and advantages, besides those mentioned in preceding paragraph three, will be derived from such annexation by reason of said territory lying across and obstructing the approach and egress of the public and the citizens of said village to and from the said village of Hartington to the public highways adjacent to said territory, therefore, for the purpose of acquiring such benefit and equity, the board of trustees of said village of Hartington, L. H. Monroe, P. A. Van Dorn, G. McGregor, D. C. Clark, did, on Friday, January 14, 1887, at a special meeting, by a two-thirds vote, adopt the resolution for such annexation which is in words and figures following, to-wit: 'Special meeting of the board of trustees of the village of Hartington, held at their office in the village of Hartington on Friday, January 14, 1887, after due notice of the same, and the purpose being first given to each member of the board at the proper time and place aforesaid, the board of trustees of the village of Hartington met in special session as aforesaid, the following members of the board being present: L. H. Monroe, chairman; P. A. Van Dorn, G. McGregor, D. C. Clark, and the clerk thereof, Chas. Plumbleigh. The object and purpose of said meeting was called for the annexation of contiguous territory of the corporate limits of the village of Hartington. After discussion of the object of the call the following preamble and resolution was adopted:

"'Whereas, owing to the limited amount of territory now included in the incorporation of the village of Hartington it is adopted by the board of trustees of said village that justice and equity demand the extension of said incorporation; therefore, be it resolved, by the board of trustees of the village of Hartington in special session that the following territory be annexed to the present incorporation of said village described as follows, to-wit: All of that portion of land or territory lying and being in the west half of the east half of section 36, township 31 north, of range 1 east, and now not included in the present corporate limits of said village of Hartington.'

"Said D. C. Clark moved the adoption of the said resolution, which motion was seconded by said G. McGregor, whereupon the roll was called and voted as follows: Ayes, L. H. Monroe, P. A. Van Dorn, G. McGregor, D. C. Clark, being the unanimous vote of all the members of the board in favor of the adoption of said resolution. Charles Plumbleigh, clerk of the board.

"The plaintiff further states that part of said territory has been subdivided into lots, blocks, streets, and alleys and platted by the defendant, Northern Nebraska Land & Improvement Company; that a part has been subdivided into small portions and sold to the owners, other defendants. Wherefore plaintiff prays for...