Omaha daily bee., 1903-02-24
SUPREME COURT SYLLABl

10llS. Castle Rock In, sation Canal and
Water Power Company against Jurisch.
instructions. ~Sedgwick, }.
l. Injunction is the proper remedy for
preventing one without authority so to do
from crpsslng the canal o. an irrigation
m ny with a lateral for the purpose of
carrying water 10 his land from another
2. An applicant for the appropriation of
the waters OF the state for irrigation pur-
poses cannot prosecute the work and con-
denim "A right-of-way for that purpose until
he has a permit from the State Board OF
Irrigation to divert the water of the state
TO specific lands described in his applica-
ton.
1880. Poppleton against Moores. Appeal
from Douglas. Former judgment adhered
to. Judgment district court affirmed. Hast
ings, &. Division No. l.
L Wholly unauthorized action under color
OF. office by municipal authorities, which
injurlously affects the interest of a tax
payer and water user of the city, and for
which he has no direct remedy at law,
warrants an injunction to protect him.
2. The ordinance comforting upon the
Omaha Waterworks company the franchise
of the public streets for maintenance of its
plant. provided that after twenty years the
city might purchase the entire plant on an
appraisement by engineers without. regard
to any value in the franchise. Held, that
was to put off the time when the city
might exercise such right to September /,
1907, was an extension of the franchise and
forbidden by SECTION 10 of the city charter.
8. The time when, under the terms of the
existing ordinance, the clty's right to pur-
chase accrues, not decided, as 1t must, In
any event, be long before September, 1905.
4. The injunction heretofore allowed In
this case held 81 have reference only to
direct attempts to postpone the accruing
of the city's right to purchase.
1859. Hoover against Haynes. Error
against Lancaster. Rehearing denied.
Barnes, G. Division No. 2.
1. In an action for damages in which in
jury to the feelings is alleged as an ele-
ment of damages, direct, proof OF damage
amount Of such damage is to be determined
from the circumstances of the case dis
closed by the evidence. d.
2. In such a case the jury cannot act
capriciously and allow damages for
imaginary injuries not warranted by the
evidence. An instruction which fails to
properly warn the jury In that regard and
will admit of the construction that the jury
Is not to be governed by the evidence IN
estimating IIa6g such dam ma, a Is So erroneous Error
from Seward. Former judgment of rever-
sal adhered to. Holcomb, ].
l. In constituting a statute the strict letter
such an Interpretation would lead to an
unreasonable or absurd conclusion; the
court will endeaVor to ascertain the true
intention of the legislature and give 1t eff
feet, rather than the literal sense of the
terms employed.
2. At common law a bastard child was
one born neither in lawful wedlock nor
within a competent time after its termina-
ton, or under circumstances which render
~ $50 5000
could be its father.
8. Under the statute entitled 'Illegitimate
an action in bastardy could be- MAINTAINED
by any woman giving birth to an illegiti-
mate child, even though begotten and born
4. BY the amendment Of the statute in
1875, which was entitled IAN act for the
maintenance and support of 'illegitimate
only by a woman who while unmarried has
become pregn9nt with child, which II born
alive would be a bastard, or has been de-
livered of an illegitimate child.
5. The word unmarried as used in the
statute as amended in 1875 (sec. l, chap.
xxxvii. Compiled Statutes for 1901, entitled
"nlegitimate Children"(. properly refers
to the status of the mother at the time her
child is begotten and born, and does not re-
late to her situation at the time of making
the complaint therein referred to.
1929. Curtis against South Omaha. APP
peal from Douglas. Affirmed. Albert, c.
/. Notice Of the meeting of a city council
as a board of equalization recltes that IL
would thus meet I'm PivonKa block in the
city, on three certain days from Q a. m. to
5 % M; the record shows a meeting on the
first of such days, and no further meeting
untfl Z p. m. of the third day, and that one
of such meetings was held at the office OF
the city clerk, the other at the council
chambers. Held, that there was no valid
equalization and that assessments levied in
pursuance thereof are void.
1888. Morse against Omaha. Appeal
from Douglas. Affirmed. Kirkpatrick c.
i. Under the provisions of section 10.
chapter Xiia, Compiled Statutes for 1897, a
petition signed by the owners of a ma
jority OF the foot frontage is requisite to a
valid levy of 4 special assessment against
property specially benefited to pay for re-
paving, and the collection or enforcement
where Il does not appear that a petition so
signed was first obtained.
.. Petition for re paVing IN case at bar
examined and held not signed by owners OF
a majority OF the loot frontage.
3. Statutory provisions authorizing as
of special taxes against property
| benefited by public improvements are to be
strictly construed, and 1t must affirma-
have taken all steps which, the law makes
iurisdictional; the failure of the record ia
show such proceedings will not be aided by
~presumptions
a one who has not been guilty o. laches
will not be estopped to object TO the pay
ment of a special assessment which is void
for want of jurisdiction in the taxing au-
thorities to make the assessment.
3. A petition asking for the requirement
of a street does not come within the pro-
visions of section 4, chapter NXXvi, Statutes
for 1901, as being an incumbrance or cen
~veyanee of land, and where the owner in
hound thereby without the Signature OF
his wife. McLain V, Maricole, 80 y, w
| Rep, s., followed.
poration, either singly or jointly, cannot
bind the corporate property by signing the
corporate name to a petition asking for q
EAAttN Improvements - 1o fNNA
authorized. .
4 A statute authorizing the city council
10 reDaVe streets under certain conditions
provided that the abutting property own
ers should have thirty days from the. date
of approval and publication OF an ordi'
nance declaring such improvement neces'
sary within which to designate the paving
i material. No other reference was made In
the statute to such ordinance declaring the
Improvement necessary. The property
owners were given thirty days from the
publication Of a certain ordinance within
which to designate the paving material
Held, that the failure of the council tC
pass and publish AL ordinance declaring
the Improvement necessary would not In
! validate the assessment.
s. The appellate court will not pronounce
a statute unconstitutional and void where
a determination of the case does not re-
quire that the constitutionality OF the stat
ute be
2. Notice of the sitting of the board OF
equalization and held 10 comply
with the requirements Of the statute.
10. The only foundation for special as
sessments rests in the special BENEFITS con
ferred upon the property assessed, anC
therefore the frontage rule per foot canno
be adopted unless the BENEFITS are equa
and uniform.
II. Under the provisions Of section l6l
chapter Xiia, Compiled Statutes for 1897
the council before assessing property fOl
special benefits. according TO the rule pc
foot frontage, must md that the benefit
'accruing thereto are equal and uniform
However, where the council fails so 10 hnS
a aXpayer with notice. dissatisfied with IN
rule per foot frontage adopted. should
cause such acuOn 10 be reviewed, and OF
failure so to do he will not, in a proceeding
TO enjoin the collection OF such tax, b.
heard TO say that the tax Is void.
~. Where II anrmattvely appears or rec
| ord that the council In Lowing the gDeCia