Bishoff v. Pieper

194 N.W.2d 177 (1972) 187 Neb. 783

Bernard F. BISHOFF, in Person and for All Persons Similarly Situated, Appellant,
v.
Herman PIEPER, as Mayor and a Member of the City Council of Harvard, Nebraska et al., Appellees.

No. 38047.

Supreme Court of Nebraska.

February 4, 1972.

Robert E. Paulick, Grand Island, for appellant.

John A. Bottorf, David J. Maser, Sutton, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

NEWTON, Justice.

This is an action instituted by a resident taxpayer of the city of Harvard, Nebraska, against the city, the mayor, members of the city council, and the trustees of the William A. Farmer estate. Its purpose is to recover for the city and the trust the funds expended in paving a street or road on the eastern boundary of Harvard. Judgment was entered for defendants. We affirm the judgment of the district court.

This record fails to reveal whether the road in question is within, partly within, or without the city limits. No city funds were expended on the road so the action must fail as to the city and its officers.

It is alleged that the will of William A. Farmer bequeathed funds in trust for the purpose of assisting in the paving of streets within the city of Harvard. There is no competent evidence disclosing the nature of the trust; nor, as pointed out, is there any evidence that the street or road paved lies outside the city limits. No breach of trust appearing, the action must also fail as to the trustees.

Where a party affirmatively pleads the existence of a fact material to the issue he assumes the burden of proving such fact. See Sack v. Sack, 156 Neb. 171, 55 N.W.2d 505.

The judgment of the district court is affirmed.

Affirmed.