Wayne County v. Cobb

• Decision Date: 21 September 1892
• Citation: 52 N.W. 1102,35 Neb. 231
• Parties: WAYNE COUNTY v. L. C. COBB ET AL
• Court: Nebraska Supreme Court

52 N.W. 1102

35 Neb. 231

WAYNE COUNTY v. L. C. COBB ET AL

Supreme Court of Nebraska

September 21, 1892

ORIGINAL action.

Action DISMISSED.

James Britton, W. M. Wright, and Brome, Andrews & Sheean, for plaintiff.

J. M Curry, and Leese & Stewart, contra.

OPINION

NORVAL, J.

This action was brought by Wayne county against L. C. Cobb, M. C Wheeler, and J. S. Lemmon, members of the board of county commissioners of Thurston county, and C. C. Maryott, the county treasurer of said county, praying that the defendants and each of them, be perpetually enjoined from exercising any official functions or powers with respect to certain territory, described in the petition, which plaintiff claims to be within the boundaries of Wayne county, and from collecting revenue from said territory and the property and inhabitants thereof, and that said territory be adjudged to be a part of the county of Wayne and not a portion of Thurston county.

After issues were formed the cause was referred, by consent of the parties, to Eugene Moore, Esq., to take the testimony and report the same with his findings of fact thereon. Subsequently the referee made the following findings:

"First--I find that the territory described in the petition of the plaintiff, alleged to be a part of Wayne county, Nebraska was, April 17, 1854, set apart as a part of the Omaha Indian reservation, by treaty with the United States government, and that at the date at which the plaintiff claims that said territory became a part of Wayne county, the said territory was a part of the Omaha and Winnebago Indian reservation.

"Second--I find that at the time said territory is alleged to have been attached to and became a part of the plaintiff, Wayne county, it was occupied by the Omaha and Winnebago Indians in common as their reservation.

"Third--I find that, in the years 1880 and 1881, there were about 2,500 Omaha and Winnebago Indians and about twenty-five white persons, government employes, living upon and inhabiting said Omaha and Winnebago reservation, and that a few white persons, who were herdsmen, lived upon and occupied for a time, during the years mentioned, that portion of the said reservation described in the plaintiff's petition, and that said parties had no rights of residence on said territory than that they acquired by reason of being in charge of private herds of cattle.

"Fourth--I find that a majority of the inhabitants of Wayne county signed a petition asking the legislature to attach that part of the reservation described in the plaintiff's petition to Wayne county.

"Fifth--I find that no petition from the legal voters of Wayne county has ever been presented to the county commissioners of said county, nor has there ever been any election held or vote taken in said county to attach said territory in dispute to said Wayne county.

"Sixth--I find that, from 1881 to 1889, Wayne county has assumed jurisdiction over the territory described in the plaintiff's petition, and levied and collected the taxes and built bridges and improved the public roads within said territory.

"Seventh--I find that, since the organization of Thurston county, said Thurston county has exercised exclusive jurisdiction over the territory in dispute and has levied and collected the taxes, improved the roads, and built and repaired the bridges.

"Eighth--I find that Pender, the county seat of Thurston county, has a population of about 800 people; that it has a number of store buildings, churches, and business blocks, ranging in value from $ 1,000 to $ 15,000 each.

"Ninth--I find that the bounded indebtedness of Thurston county, of all sorts, is about four thousand dollars, and that the floating indebtedness of said county is about six or seven thousand dollars.

"Tenth--I find that Thurston county, as now existing, contains four hundred and sixteen square miles and no more, and that a severance of the land in dispute from said county will leave Thurston county but three hundred and sixty square miles.

"Eleventh--I find that the Indians now living in what is now known as Thurston county have had their lands allotted to them in severalty and have severed their tribal relations and are now living thereon and claiming to be citizens of the state of Nebraska, having all the qualifications of citizens under and by virtue of the act of congress of 1887, known as the Dawes Bill, and have been living thereon and claiming to be such citizens ever since July 1, 1887.

"Twelfth--I find that the inhabitants and voters of Wayne county did not consent that the territory in dispute should be stricken from said Wayne county at any time or in any...