Michaelson v. Tilden , 72 Neb. 744 ( 1904 )

Ames, O.

This record is of so unusual an aspect that it presents • neither an issue of fact nor a dispute of law. The action is a proceeding by owners in severalty of contiguous tracts of land to procure tlieir detachment from the village of Tilden. The petition was granted as to several of the tracts, hut, with respect to two of them lying immediately adjacent to one of the more settled regions of the village, it was denied, and the owners of these tracts have brought the case to this court by appeal. There was no testimony offered on the trial except that of one of- the appellants, and no evidence, other than public records, except a plat or sketch of the site of the village attached as an exhibit to the bill of exceptions, and showing the relative positions of some of the neighboring buildings, streets and tracts of land. The statute provides, section 101, article I, chapter 14, Compiled Statutes, 1903 (Annotated Statutes, 8776) : “If the court find 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,” which either party may have reviewed in this court by appeal or proceedings in error. In the absence of evidence of any specific fact or circumstances tending to impeach the justice of the decree, we do not see how we can Intelligibly revise it. It is true that we have a general description in the testimony, and by the exhibit, of the land involved in the dispute, and of the adjacent tracts Avithin the village, but these afford us far less accurate and comprehensive knoAvledge of the situation and surroundings than were, presumably, possessed by the trial judge, who is not unlikely to have been personally familiar with both, and AA'hose judgment may therefore have been influenced by evidence of the most Aveiglity character Avhich is not reflected from the bill of exceptions. If the record disclosed anything from which it might be contended that the judge committed an important mistake of fact, or had made an erroneous inference of fact or of laAV, the case Avould be other than it noAV is, and might call for a revieAv, and a reversal or affirmance of his findings and judgment; but, although the case is by permission of the statute here on appeal, Ave do not see Iioav his determination can be impeached for want of equity, in tlie absence of apparent error in some of the respects named.

It is recommended that the judgment of the district court be affirmed.

Letton and Oldham, CC., concur.

By the Court:

For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be

Affirmed.