County of Hayes v. County of Frontier (319 Neb. 98)
Nebraska Supreme Court, 6 June 2025

1. Introduction

In County of Hayes v. County of Frontier, the Nebraska Supreme Court reviewed a quarrel between two neighboring counties over who should pay for a bridge replacement that lay just inside Hayes County but only sixty feet from the Hayes-Frontier county line. Hayes County had unilaterally replaced the bridge and then, relying on Neb. Rev. Stat. §§ 39-827 to 39-830, demanded that Frontier County reimburse one-half of the net cost (about $183,000). When the Frontier County Board of Commissioners rejected the claim, Hayes filed a petition in error in the district court. After the district court dismissed the petition, Hayes appealed to the Nebraska Supreme Court.

The case presented three core issues:

1. What procedural and pleading standards apply to a petition in error challenging an administrative decision?
2. What evidentiary showing is necessary to prove that a bridge is on a “road on a county line” under § 39-1403 so as to trigger the cost-sharing obligation in § 39-827?
3. Does an interlocal maintenance agreement or a party’s pleadings constitute evidence or judicial admissions sufficient to satisfy that showing?

2. Summary of the Judgment

Affirming (with a minor modification) the district court’s judgment, the Supreme Court held:

• The petition in error was fatally deficient because it failed to specifically set out the assignments of error, as required by § 25-1903 and long-standing case law. Arguments raised only in briefs could not cure the omission.
• Hayes bore the burden of proving every fact necessary to invoke § 39-827. The transcript before the Frontier Board contained no competent evidence—maps, surveys, testimony, or otherwise—establishing that the bridge sat on a “road on a county line” within the meaning of § 39-1403, or that both counties were “equally interested.”
• Extrinsic allegations in a petition, letters between counsel, or statements in pleadings do not become evidence. Nor can a county force cost-sharing merely by pointing to a prior interlocal road-maintenance agreement that never addressed bridges.
• Because the Frontier Board’s denial rested on the absence of proof, its action was not arbitrary or capricious. The district court should have “affirmed” rather than “denied and dismissed” the petition; the Supreme Court modified the judgment accordingly.

3. Analysis

3.1 Precedents Cited

• Ainsworth v. Taylor, 53 Neb. 484 (1898) – First articulated the strict rule that each alleged error must be “specially set forth” in a petition in error.
• Bickford v. Board of Ed., 214 Neb. 642 (1983) – Reaffirmed Ainsworth; issues argued only in briefs but omitted from the petition are waived.
• Turnbull v. County of Pawnee, 19 Neb. App. 43 (2011) – Held that repackaging an error proceeding as a contract action does not bypass § 25-1903’s pleading mandate.
• Douglas County v. Archie, 295 Neb. 674 (2017) – Described the deferential “arbitrary or capricious” standard and limited scope of review under a petition in error.
• Champion v. Hall County, 309 Neb. 55 (2021) – Clarified that petitions in error are legislatively created, independent proceedings, not common-law suits.
• Earlier bridge-sharing precedent: Brown County v. Keya Paha County, 88 Neb. 117 (1910), illustrating historic use of § 39-828 to recover one-half costs.

The Court synthesized these cases to reinforce two procedural pillars:

1. Assignments of error must be stated with particularity in the petition itself;
2. Reviewing courts examine only the evidence actually before—i.e., contained in the transcript of—the inferior tribunal.

3.2 Legal Reasoning

3.2.1 Pleading Deficiencies

Section 25-1903 makes the inclusion of “the errors complained of” jurisdictional. Hayes’ petition listed facts and prayer for relief but never itemized specific legal errors. The Court, echoing Ainsworth, treated this as a threshold failure: absent proper assignments, the district court—and, by extension, the Supreme Court—lacked authority to consider new issues raised later in briefs (e.g., alleged open-meetings violations or claims of equal interest).

3.2.2 Insufficient Evidence in the Administrative Record

Even ignoring the pleading defect, the Court found no evidentiary basis for Hayes’ claim:

• The only “evidence” in the Board’s transcript was Hayes’ financial claim form and invoices. No survey, affidavit, engineer’s report, or testimony established the bridge’s precise relationship to the county line or that topography forced the deviation (§ 39-1403 requirement).
• Letters and maps attached to an interlocal road-maintenance agreement were not created for, or adopted into, the Board’s evidentiary record and thus could not substantiate factual findings.
• Frontier’s answer in the district-court proceeding could not serve as a judicial admission before the Board retroactively; pleadings filed after the administrative decision do not alter the record “removed” for error review.

3.2.3 Standard of Review

Under the “arbitrary or capricious” lens, a denial based on absence of proof is sustainable. The Court emphasized the claimant’s burden of production: a county seeking reimbursement must affirmatively demonstrate each statutory element (location on a qualifying road, equal interest, notice, etc.). Hayes’ failure to request an evidentiary hearing before the Board compounded the evidentiary void.

3.2.4 Proper Appellate Disposition

The district court “denied and dismissed” the petition. The Supreme Court corrected the form, noting that the correct disposition after reviewing an administrative record is to “affirm,” “reverse,” or “modify” the inferior tribunal’s order. Because the Board’s order stood, “affirmed” was appropriate.

3.3 Impact of the Decision

The ruling pushes three doctrinal ripples across Nebraska public-law practice:

1. Heightened Drafting Discipline. County attorneys, municipal lawyers, and private counsel must draft petitions in error with meticulous, enumerated assignments, or risk dismissal for lack of jurisdiction.
2. Evidentiary Preparedness in Administrative Proceedings. Parties appearing before county boards (or other tribunals) must treat those hearings as the only opportunity to create a record. Supplemental materials, however persuasive in later litigation, will be ignored if not part of the certified transcript.
3. Bridge Cost-Sharing Litigation. The decision narrows the pathway for unilateral bridge replacements followed by cost-recovery actions. Claimant counties must now marshal concrete evidence (location surveys, traffic studies showing “equal interest,” proof that road deviation stems from topography) before demanding reimbursement under § 39-827.

4. Complex Concepts Simplified

• Petition in Error: A statutory mechanism (Neb. Rev. Stat. §§ 25-1901–1908) to transfer the record of an inferior tribunal to the district court for limited legal review. Think of it as a specialized appeal requiring its own “mini-lawsuit” with summons and strict pleading rules.
• Assignments of Error: Bullet-point statements within the petition specifying exactly how the lower tribunal erred (e.g., “The Board erred in finding the bridge is not on a road on the county line”). Without them, the reviewing court has nothing to decide.
• Arbitrary and Capricious: A deferential standard—an agency decision is overturned only if no rational person, properly informed, could have reached the same result.
• County-Line Road (§ 39-1403): A road laid out on a county boundary remains a county-line road even if, because of terrain or stream crossings, some segments swing to one side. Proof demands evidence of why the deviation occurred (topography, watercourse), not just measurement in feet.
• Judicial Admission vs. Evidence: A statement in a pleading can bind the party who made it for that lawsuit, but it does not retroactively add facts to an earlier administrative record under review.

5. Conclusion

County of Hayes v. County of Frontier stands as a cautionary tale: procedural rigor and evidentiary completeness at the administrative level are indispensable when relief will later be sought by petition in error. The Nebraska Supreme Court has now made explicit that:

• Specific, particularized assignments of error in the petition are jurisdictional;
• Only materials contained in the certified transcript count as “evidence” for judicial review;
• Claimant counties shoulder the full burden of proving all statutory predicates for inter-county cost sharing;
• Interlocal agreements on routine road maintenance and post-decision litigation pleadings cannot substitute for competent evidence before the administrative body.

Going forward, practitioners should approach petitions in error as if they are drafting an appellate brief at the lawsuit’s inception and should develop a robust evidentiary record before the administrative tribunal—not after. Failure to do so, as Hayes County discovered, will likely doom the endeavor regardless of the substantive merits lurking beneath the procedural missteps.