Wayne County v. Cobb.

The legislature of 1881 sought to change the boundaries of Wayne county by adding to said county a strip of territory four miles wide by fourteen miles long, adjoining on the east of said county, which was a part of the Omaha and Winnebago reservation. Subsequently, in 1889, the legislature created and established Thurston county, including within its boundaries the aforesaid strip of land, containing fifty-six sections. The main question presented is the validity of the legislative enactment extending the boundaries of Wayne county. If valid, the territory in dispute is still a part of said county, and the act of 1889, which detached said territory therefrom and made the same a part of the county of Thurston, would contravene sections 2 and 3, article X, of the state constitution, because the people of Wayne county, neither by vote nor petition, asked to have said territory stricken from said county.

It is urged that the act of 1881, extending the boundaries of Wayne county, is illegal for two reasons: First, because the added territory was at the time a portion of an Indian reservation, the occupants of which had not then severed their tribal relations; therefore the legislature had no authority to attach the same to an organized county without the consent of congress; second, because the question of attaching said territory to Wayne county was never submitted to a vote of the people thereof.

In our view it will only be necessary to consider and pass upon the second or last ground of objection.

Section 3, article X, of the constitution declares that "There shall be no territory stricken from any organized county unless a majority of the voters living in such territory shall petition for such division, and no territory shall be added to any organized county without the consent of the majority of the voters of the county to which it is. proposed to be added," etc. The quoted constitutional provision restricts the power of the legislature to change the boundaries of any organized county. After a county has been formed or established it is not within the author

Wayne County v. Cobb.

ity or jurisdiction of the law-making body to change the boundaries thereof by either striking a portion therefrom, or by adding territory thereto, unless a majority of the qualified electors of the county consent to such change. It appears from the findings of the referee that no election was ever held or vote taken in Wayne county upon the proposition to annex thereto the territory in dispute. While it is true the majority of the inhabitants of said county petitioned the legislature to attach the territory, such act was not a compliance with the requirements of the statute then in force relative to the adding of unorganized territory to an organized county.

Section 9, article I, chapter 18, Compiled Statutes 1881, provides that "Where any unorganized territory, not exceeding two townships, lies adjoining to and is not embraced within the boundaries of any county, and a majority of the inhabitants of said territory petition to the commissioners of said adjoining county to be attached to the same, the county board of said county shall, within three months, order an election as provided for in sections 4, 5, and 6 of this act, and said territory shall become attached to said county by a majority vote of the same, and be subject in all other respects to the provisions of this act."

While the constitution requires that the proposition to change the boundaries of an organized county so as to include therein unorganized territory must receive the sanction of a majority of votes of the county, the legislature has by the above provision pointed out the mode of procedure. It prescribes that the manner of taking the expression of the people upon the proposition shall be by ballot at an election called for that purpose by the county board of the county. No such an election having ever been called or held in Wayne county, the territory in question was never legally a part of said county. It follows that the action must be DISMISSED.

THE other judges concur.

Miller v. Antelope County.

J. M. MILLER V. ANTELOPE COUNTY.

[FILED SEPTEMBER 21, 1892.]

Review: PRACTICE: A MOTION FOR A NEW TRIAL is necessary to obtain a review by petition in error of the rulings of the trial court on the admission or exclusion of testimony, or to secure a review of the evidence for the purpose of determining whether it is sufficient to sustain the finding and judgment.

ERROR to the district court for Antelope county. Tried below before NORRIS, J.

B. B. Willey, for plaintiff in error.

J. F. Boyd, contra.

NORVAL, J.

The plaintiff in error presented to the county board of Antelope county an account for $44.50 for medical services rendered by him to one Christian Mosher, a pauper, at the request of E. F. Skinner, a justice of the peace of said county, which claim was rejected by the board, and Miller appealed from the decision to the district court. Upon the trial there the court found the issues for the county and rendered judgment, dismissing the action.

The petition in error contains two assignments:

First-The court erred in admitting the evidence of the witness T. W. Dennis.

Second-The findings are not sustained by sufficient

evidence.

We are precluded from examining either of the errors assigned, for the reason no motion for a new trial was made in the court below. The filing of such a motion was indispensable, in order to review the rulings of the court on the admission or rejection of testimony, or to secure a review of the evidence for the purpose of determining whether

Devine v. Burleson.

it sustains the finding and judgment. (Cropsey v. Wiggenhorn, 3 Neb., 108; Hosford v. Stone, 6 Id., 380; Lichty v. Clark, 10 Id., 472; Cruts v. Wray, 19 Id., 581; Weitz v. Wolfe, 28 Id., 500.)

As neither of the errors assigned can be considered by this court, for the reason stated, the judgment of the district court must be

THE other judges concur.

AFFIRMED.

MARTIN DEVINE V. IRA J. BURLESON.

[FILED SEPTEMBER 21, 1892.]

Forcible Entry and Detention: DESCRIPTION OF LAND. A description of a tract of land in a complaint in an action of forcible entry and detainer, before a justice of the peace of Holt county, as the "N. W. section 20, township 29, range 14 west," is not void for uncertainty, although neither the meridian, county, nor state is given. There is but one tract of land in this state to which such description is applicable, and that is situated in the county where the action was originally brought.

ERROR to the district court for Holt county. Tried below before TIFFANY, J.

M. P. Kinkaid, for plaintiff in error.

M. F. Harrington, contra.

NORVAL, J.

This is an action for the forcible entry and detainer of real property, commenced by Ira J. Burleson, before T. W. Iron, a justice of the peace of Holt county, where the plaintiff had judgment. The defendant took the case on error to the district court, where the judgment of the justice was sustained.

Devine v. Burleson,

But a single proposition is submitted for our consideration, and that is, Does the complaint sufficiently describe the premises for the possession of which the action is brought? The description in the complaint is the "northwest quarter section 20, township 29, range 14 west." It is insisted that the description is not sufficiently definite, as neither the meridian, county, nor state is given. The objection is untenable. The description is not defective, for the premises are definitely described. There is no uncertainty as to the lands intended. True, the meridian is omitted, but the courts of this state will take judicial notice of the mode of the general government of surveying public lands, and that there is but one meridian line in this state. We know that there is but one tract of land in this state to which the description contained in the complaint is applicable, and that is situated in Holt county. The premises could be established and identified by a competent surveyor without difficulty. The case is brought within the authority of Cummings v. Winters, 19 Neb., 719. It was there held that a notice to quit in forcible entry and detainer, which described the premises as "the northeast quarter of section 28, 37, R. 7," sufficiently identified the property. (See Butler v. Davis et al., 5 Neb., 521.)

A description in a deed like the one contained in the complaint before us would not be void for uncertainty. (Kykendale v. Clinton, 3 Kan., 85; Atwater v. Schenck, 9 Wis., 160; Doughtery v. Purdy, 18 Ill., 206; Billings v. Kankakee Coal Co., 67 Id., 489; Kile v. Yellowhead, 80 Id., 208; Smith v. Crawford, 81 Id., 296; Russell v. Sweezey, 22 Mich., 235.)

It follows from what has been said that the judgment of the district court must be

AFFIRMED.

THE other judges concur.