In my opinion the judgment should be reversed and the cause remanded, with directions to the trial court to determine if any portion of appellants' approximately fifty-nine acre tract could be detached from the municipality without materially marring the symmetry of the village. The majority of the court is of the opinion such direction could not be made upon a reversal by this court, but does not hold another proceeding may not be instituted for such purpose.
By reason of it being unnecessary for the court under the statute (C. S., sec. 4105, as amended by Sess. Laws 1921, chap. 111, pp. 258-260) to make written findings upon which to enter judgment in a proceeding of the kind involved, it is difficult to determine upon which of the four grounds enumerated in the statute, all of which must be found to exist before judgment of detachment will be granted, the petition was or may be denied. As pointed out in the majority opinion herein, it is clear the tract in question contains more than five acres, used exclusively for agricultural purposes. But the evidence leaves in doubt whether the petition was denied on the ground of sufficient special benefits to justify the retention of said lands within the corporate limits of such municipality, or *Page 47 that by detachment the symmetry of the municipality would be materially marred.
I do not gather from the opinion that the evidence is held sufficient to show sufficient special benefits to justify the retention; such a holding would not be tenable under the facts of this case. As I understand it, the affirmance is based mainly on the sufficiency of the evidence to demonstrate that detachment of the whole tract of appellants, would materially mar the symmetry of the village. The majority opinion does not hold that detachment of a tract of different or smaller proportions than that sought to be detached would have this effect. Nor do I understand the majority as intending to preclude another action for the purpose of determining if a tract of lesser acreage might not be eliminated, — for instance, the northwest forty, — without materially marring the symmetry of the village. In other words, the present action would not be res judicata provided a subsequent action did not pray for a detachment of the whole tract here involved.
MEMORANDUM.