17-414. Land within corporate limits; disconnection; procedure.

Whenever a majority of the legal voters residing on any territory within and adjacent to the corporate limits of any city of the second class or village or the owner or owners of any unoccupied territory so situated desire to have the territory disconnected from such city or village, they may file a petition in the district court of the county in which such city or village is situated requesting that such territory be detached. The petitioners shall, within ten days after the filing of such petition, cause a copy of such petition to be served on such city or village in the manner provided by law for the service of summons in a civil action. If the city or village by a majority vote of all members of the city council or village board of trustees consents that such territory be disconnected, the court shall enter a decree disconnecting the territory, and in such case no costs shall be taxed against such city or village. In case such a city or village desires to contest such petition, it shall file its answer to such petition within thirty days after the service of a copy of the petition and upon such filing shall be joined to the issue and the cause shall be tried by the court as a suit in equity. If the court finds in favor of the petitioners and that justice and equity require that such territory, or any part thereof, be disconnected from such city or village, it shall enter a decree accordingly. In all cases such a decree disconnecting part or all of such territory shall particularly describe the territory affected and a certified copy of such decree shall be recorded in the office of the register of deeds or county clerk of the county in which such territory is situated. A certified copy of such decree shall also be forwarded to and filed in the office of the affected city clerk or village clerk. Either party may prosecute an appeal from the finding and decree of the district court to the Court of Appeals.

Source

Annotations

1. Right of action

2. Procedure

3. Powers of court

4. Effect of disconnection

5. Miscellaneous

1. Right of action

The power, granted herein, to disconnect territory from the city does not extend to cities of the metropolitan class. State ex rel. Andersen v. Leahy, 189 Neb. 92, 199 N.W.2d 713 (1972).

Detachment of property is limited to territory adjacent to the corporate limits. Village of Niobrara v. Tichy, 158 Neb. 517, 63 N.W.2d 867 (1954).

Rural land receiving few, if any, benefits should be detached. Runyan v. Village of Ong, 154 Neb. 127, 47 N.W.2d 97 (1951).

One person, who is the only legal voter residing within the territory, may maintain action to detach. Delozier v. Village of Magnet, 104 Neb. 765, 178 N.W. 619 (1920).

The fact that unplatted lands used exclusively for agricultural purposes were included in corporate limits with owner's tacit permission does not estop him from proceeding in district court to have it disconnected. Joerger v. Bethany Heights, 97 Neb. 675, 151 N.W. 236 (1915); Barber v. Village of Franklin, 77 Neb. 91, 108 N.W. 146 (1906).

Statute of limitations does not run against owner's right of unoccupied lands to have same disconnected from village, and the mere fact that a former owner signed a petition for an election to vote municipal bonds does not estop a present owner from claiming such right. MacGowan v. Village of Gibbon, 94 Neb. 772, 144 N.W. 808 (1913).

Owner of agricultural lands included within boundaries of such municipality, even though not a voter, may maintain an action to have such lands detached. Village of Osmond v. Matteson, 62 Neb. 512, 87 N.W. 311 (1901); Village of Osmond v. Smathers, 62 Neb. 509, 87 N.W. 310 (1901); State ex rel. Hammond v. Dimond, 44 Neb. 154, 62 N.W. 498 (1895).

2. Procedure

Under prior act, proviso referred to conditions existing at time action was brought and not to land once platted where plat was vacated prior to bringing action. Edgecombe v. City of Rulo, 109 Neb. 843, 192 N.W. 499 (1923).

Provisions of this section do not provide the exclusive method for detaching territory from a municipality. Sole v. City of Geneva, 106 Neb. 879, 184 N.W. 900 (1921).

In an action to annex territory, the burden is upon the village to establish that justice and equity require such territory should be annexed, and, in an action to disconnect territory, the burden is upon the petitioner to establish that justice and equity require that such territory should be disconnected. Haney v. Village of Hyannis, 97 Neb. 220, 149 N.W. 405 (1914).

3. Powers of court

A decree under this section is tried de novo in the Supreme Court, under the provisions of section 25-1925, R.R.S.1943. Dugan v. Village of Greeley, 206 Neb. 804, 295 N.W.2d 115 (1980).

Detachment may be denied where it would enhance difficulties of city administration. Swanson v. City of Fairfield, 155 Neb. 682, 53 N.W.2d 90 (1952).

Court of equity is empowered to disconnect agricultural lands having no unity or community of interest with city. Davidson v. City of Ravenna, 153 Neb. 652, 45 N.W.2d 741 (1951).

Where tract of land within city limits had the benefit of adequate fire protection, public utilities, and improved streets adjacent thereto, decree should be entered denying detachment. Lee v. City of Harvard, 146 Neb. 807, 21 N.W.2d 696 (1946).

The judgment of the district court detaching territory will not be impeached upon appeal in absence of a showing that the trial judge committed mistake of fact, or made an erroneous inference of fact or of law. Marsh v. Village of Trenton, 92 Neb. 63, 137 N.W. 981 (1912); Chapin v. Village of College View, 88 Neb. 229, 129 N.W. 297 (1911); McMillan v. Diamond, 77 Neb. 671, 110 N.W. 542 (1906); Gregory v. Village of Franklin, 77 Neb. 62, 108 N.W. 147 (1906); Michaelson v. Village of Tilden, 72 Neb. 744, 101 N.W. 1026 (1904).

In determining whether lands receive material benefit from the city, and also, whether justice and equity require annexation, the court acts judicially, and where unplatted lands within or without the corporate limits have no unity in interest with platted portion of the city, justice and equity dictate that they should be excluded therefrom. Bisenius v. City of Randolph, 82 Neb. 520, 118 N.W. 127 (1908).

4. Effect of disconnection

Under the facts of this case, to detach the land in question would have an adverse effect on the village. Dugan v. Village of Greeley, 206 Neb. 804, 295 N.W.2d 115 (1980).

Disconnection of lands from a city or village requires a consideration of all the facts and circumstances. Shelton Grain & Supply Co. v. Village of Shelton, 178 Neb. 695, 134 N.W.2d 815 (1965).

When statute authorizes change of boundaries and is silent as to apportionment of municipal debts, the territory within new boundaries becomes liable for taxes for all prior debts and the detached territory is forever released from all municipal debts. Hustead v. Village of Phillips, 131 Neb. 303, 267 N.W. 919 (1936).

Where district court decrees that justice and equity do not require detachment of farm lands from corporation and no appeal is taken therefrom, the matter becomes res judicata and binding upon successors in title, unless sufficient new facts are shown that justice and equity require detachment. Keim v. Village of Bloomington, 119 Neb. 474, 229 N.W. 769 (1930).

Vacation of plat by owner of land within the corporate limits of a municipality does not disconnect such land from the corporation. Kershaw v. Jansen, 49 Neb. 467, 68 N.W. 616 (1896).

5. Miscellaneous

Substantial part of territory sought to be detached must be adjacent to a part of the boundary of the municipality. Egan v. Village of Meadow Grove, 159 Neb. 207, 66 N.W.2d 425 (1954).

Adjacent means contiguous or coexistent with. Jones v. City of Chadron, 156 Neb. 150, 55 N.W.2d 495 (1952).

Bondholders have no vested right to have boundaries of the village remain constant. Taxes cannot be levied for village purposes on disconnected property. Hardin v. Pavlat, 130 Neb. 829, 266 N.W. 637 (1936).

This section applies only to villages and cities of the second class. City of Hastings v. Hansen, 44 Neb. 704, 63 N.W. 34 (1895).