BRADSHAW v. THE CITY OF OMAHA.

tages without incidentally benefiting such proprietors in their personal privileges and accommodations or in the enhancement of their property, then the power to tax the same arises, but in its exercise great care and circumspection should be exercised lest perchance an injustice and oppression may ensue.

"Now, applying this rule to the property involved in this case in the light of the facts and circumstances above reported to us by the referee, we can not be at a loss where to place this property, and to hold at once that locally it occupies no such attitude towards the improved parts of the town, that it can be legally taxed for municipal objects."

After these extended citations, it will bring out the strength of the case at the bar, to rehearse the situation of the lands successively protected by these numerous adju dications, and compare them with those now in question. In the two Kentucky cases, the cities had, in their actual growth, reached to and in one case beyond the lands.

In the first Iowa case, the lands were about a mile from any lands laid out as town lots, or used as town property, and were used for farming purposes.

In the secondly cited Iowa case, all that is said of the lands is that they were not needed for, or used as city property.

In the last case cited, the lands were within twenty-six rods on one side and ninety on the other of improvements, and the city had been built up on each side and beyond it. But no streets had been opened to it, and it had been used exclusively for farming purposes. It contained only six

teen acres.

In all these five cases the legislation subjecting them to city taxation was held unconstitutional.

In this case the land is alleged to be two miles from the settled part of the city, and one mile from any lands improved or occupied as town lots; the adjoining lands

BRADSHAW v. THE CITY OF OMAHA.

are either vacant or used for agricultural purposes only; between these lands and the city, is a whole quarter section used as a farm. A cemetery and a large farm bounds this tract on the south. On the east are several hundred acres entirely vacant, and on the west and north are no improvements whatever. No streets approach nearer than a mile, and no house is nearer than a mile. If the cases cited are law, this in every circumstance is much stronger. These cases are cited with approval by Sedgwick in his great work on Construction, page 675 in the notes, and are quoted by Mr. Justice COOLEY of the Supreme Court of Michigan, in his late most interesting and able treatise on Constitutional Limitations. They seem to meet his approv al, as the result of them is stated without qualification in the text.

From these cases, and from the abundant reasons by which they are sustained, may be deduced the following tests of the liability of lands to taxation by a city, within which they have without the owner's consent been included.

1. If the lands have been divided into town lots, if purchasers of small parcels have been invited to settle thereon and occupy them, if the owner has done any affirmative act leading the city to treat the property as town property, or if town settlements have approached near to them, so that the enjoyment of them in peace and good order, demands the police regulations of a municipal corporation, then the lands are liable to taxation. 2. On the other hand, if the owner has done no act, as by laying the lands off into lots, or asking for city grades, or applying for opening streets, if he retains them in a large body of such size as is manifestly inadmissible in a city, and if they are situated at a distance of a mile or half a mile from the settled part of the town, and no streets are or need to be opened for the use of owners of adjoining lots, and their quiet enjoyment does not require a city

BRADSHAW v. THE CITY OF OMAHA.

police, then the legislation is obnoxious to the objection, that it infringes the constitution, and must be so declared by the court.

We do not attempt to draw the line between such lands as are taxable and such as are not. Each case must be determined by its own circumstances. But the tests above mentioned will furnish an easy solution to any case which may arise. Tried by them, the legislation here complained of, cannot be sustained. It is unconstitutional and void.

The demurrer should have been sustained, with leave to the defendants to answer if they desired to do so. The judgment of the District Court must be reversed, and the cause remanded, for such further proceedings, in pursuance of the principles of this opinion, as to the court may seem just to be had or permitted. The defendant must pay the costs of this appeal.

Judgment reversed and cause remanded.

POLAND v. O'CONNOR.

Poland v. O'Connor.

SPECIFIC PERFORMANCE of a parol contract for the sale of lands — 1. Must be clearly established. A parol agreement for the sale and conveyance of land must be established by clear and most satisfactory proof, or the court will not specifically enforce it.

2. PART PERFORMANCE. Payment of a small portion of the purchase price is not such part performance as takes the contract out of the statute of frauds.

8. - Possession. To take such a case out of the statute, the possession of the vendee must be by acts clear, certain and definite in their object, and having reference to the contract.

4.

5.

Possession taken by the vendee after the vendor has disavowed the contract, which has been made by a person pretending to be his agent, will not support the claim.

Using a lot otherwise vacant, and adjoining the vendee's warehouse, for storing lumber, wagons and like articles, of himself, his firm and others who have placed the same in his hands for sale on commission. is not such possession as will take the case out of the statute.

6.: Building. Not every possible act of the vendee done with reference

7.

to the contract, but those only to which he has been induced by positive action or permission of the vendor, or at most by those results which naturally flow from the agreement, operate to take the case out of the statute.

―: An instance. A vendee under such contract, who has purchased a house with the view of placing it on the premises, but who has not doue so, has not thereby taken his case out of the statute.

This was a bill in chancery for a specific performance of a parol contract, for the sale of certain real estate.

The plaintiff claimed to have made the purchase through one Clarke, who, as he insisted, was the defendant's agent. Whether O'Connor had ever appointed Clarke his agent, or in any way authorized him to sell the lot, was a question of fact in the cause, much discussed. Clarke testified very positively that O'Connor had employed him to sell the lot, had assented to the sale and the terms of it, and

POLAND v. O'Connor.

detailed a number of circumstances to show that he was correct.

On the other hand, O'Connor contradicted Clarke as positively, gave a different version to their conversations, and testified to a continued and persistent refusal on his part to sell, at and about the time Clarke claimed to have received his authority to sell.

The purchase price of the lot as alleged by the plaintiff, was one thousand dollars. When informed that Clarke had made the sale to him, the plaintiff immediately sent bim $25 to apply on the purchase, and received from Clarke a receipt, saying that the deed was to be made in ten days. Shortly afterwards, and as the defendant alleged, as soon as he heard that the plaintiff claimed to have made the purchase through Clarke, he disavowed the sale, and informed the defendant that he should claim rent for the premises, if he occupied them.

The premises were a business lot in Omaha, vacant at the time, adjoining a warehouse which belonged to the plaintiff, in which with a partner, he carried on the business of selling articles of merchandize, particularly wagons, on commission. He had on the lot, shingles, timber, lumber, machinery and wagons. He had also purchased a house with the view of placing it on the premises, and designed to carry on therein a mercantile business. This house had been taken in pieces, brought from a considerable distance, and in consequence of the defendant's refusal to convey, had been left at the wharf, and never been placed on the premises.

The cause was heard upon pleadings and proofs, and a decree was rendered dismissing the bill.

The plaintiff appealed to this court.

A. J. Poppleton, for the appellant, contended that the agency of Clarke was proven, notwithstanding the defend