Board of Ed. of City of Minot v. Park Dist. of City of Minot, 7515

• Decision Date: 06 June 1955
• Docket Number: No. 7515,7515
• Citation: 70 N.W.2d 899
• Parties: The BOARD OF EDUCATION OF CITY OF MINOT of the State of North Dakota, Plaintiff and Respondent, v. PARK DISTRICT OF CITY OF MINOT, Clara Kluver, Effice Conan, Harvey Johnson, Rollie Johnson, George Johnson, Lyle Johnson, Florence E. McPeek, Frank W. Roach, Annie Roach, Lucille Margaret Roach, Gladys Roach Cleary, Clarence P. Roach, Joseph H. Roach, Eleanor Roach Moen, Bertha Rogers, Henry Storbeck, Alma Storbeck, Minot Federal Savings & Loan Association, Clifford Odland and Josie D. Odland, Kate Faris, William D. Stevens, Marshall E. McGovern, Roy Reimer and Gladys F. Reimer, Thomas J. Timko and Florence J. Timko, George S. Klovstad and Celia Klovstad, Clair L. Ingalls and Dorothy M. Ingalls, Lillian Dasher, A. C. Russell and Ellen Russell, Elliott Film Corporation, Katherine W. Lefebvre and William V. Lefebvre, John B. Simonieg, and Rose Simonieg, Stella M. Aaby and Alvin G. Aaby, Anna Knudtson, also known as Annie Knudtson, Theodore O. Lee, Alice M. Elder and James R. Elder, Gustav Rothgarn and Tillie Rothgarn, Alan Lee, Robert Sullivan and Violet Sullivan, Hugo F. Fursteneau and Stella M. Fursteneau, also known as Hugo F. Furstenau and Stella M. Furstenau, Gordon F. Kuist and Eunice C. Kuist, Sam Mentis, Mary Margaret Davis, John C. Burkhartsmeier and LaVaughn M. Burkhartsmeier, Harvey J. Johnson and Elisa A. Johnson, Frank Pettys and Nora Pettys, Newell A. Sherwood and Jeanette Sherwood, Laura M. Ralston and Leslie Ralston, Bernhart M. Mueller, John N. Ellison and Sophie G. Ellison, Fred R. Erenfeld and Eliska Erenfeld, Jennie Thompson, Hannah Effertz, Mary H. McKoane, Peter Olson and Emma Olson, Henry K. Milkey and Hazel Milkey, Edith Johanna Peterson, Union National Bank, Minot, Ruth Barnes, E. V. Rosenberger and Neva Rosenberger, Provident Life Insurance Company, Arthur F. Anderson and Beda S. Anderson, Kenneth A. Schultz and Yvonne L. Schultz, Charles L. Northrop and Minnie Northrop, L. G. Kruse and Orpha Kruse, Leo J. Flammang and Hazel M. Flammang, Samuel
• Court: North Dakota Supreme Court

Page 899

70 N.W.2d 899

The BOARD OF EDUCATION OF CITY OF MINOT of the State of

North Dakota, Plaintiff and Respondent, v. PARK DISTRICT OF CITY OF MINOT, Clara Kluver, Effice Conan, Harvey Johnson, Rollie Johnson, George Johnson, Lyle

Johnson, Florence E. McPeek, Frank W. Roach, Annie Roach,

Lucille Margaret Roach, Gladys Roach Cleary, Clarence P.

Roach, Joseph H. Roach, Eleanor Roach Moen, Bertha Rogers,

Henry Storbeck, Alma Storbeck, Minot Federal Savings & Loan

Association, Clifford Odland and Josie D. Odland, Kate

Faris, William D. Stevens, Marshall E. McGovern, Roy Reimer

and Gladys F. Reimer, Thomas J. Timko and Florence J. Timko,

George S. Klovstad and Celia Klovstad, Clair L. Ingalls and

Dorothy M. Ingalls, Lillian Dasher, A. C. Russell and Ellen

Russell, Elliott Film Corporation, Katherine W. Lefebvre and

William V. Lefebvre, John B. Simonieg, and Rose Simonieg,

Stella M. Aaby and Alvin G. Aaby, Anna Knudtson, also known

as Annie Knudtson, Theodore O. Lee, Alice M. Elder and James

R. Elder, Gustav Rothgarn and Tillie Rothgarn, Alan Lee,

Robert Sullivan and Violet Sullivan, Hugo F. Fursteneau and

Stella M. Fursteneau, also known as Hugo F. Furstenau and

Stella M. Furstenau, Gordon F. Kuist and Eunice C. Kuist,

Sam Mentis, Mary Margaret Davis, John C. Burkhartsmeier and

LaVaughn M. Burkhartsmeier, Harvey J. Johnson and Elisa A.

Johnson, Frank Pettys and Nora Pettys, Newell A. Sherwood

and Jeanette Sherwood, Laura M. Ralston and Leslie Ralston,

Bernhart M. Mueller, John N. Ellison and Sophie G. Ellison,

Fred R. Erenfeld and Eliska Erenfeld, Jennie Thompson,

Hannah Effertz, Mary H. McKoane, Peter Olson and Emma Olson,

Henry K. Milkey and Hazel Milkey, Edith Johanna Peterson,

Union National Bank, Minot, Ruth Barnes, E. V. Rosenberger

and Neva Rosenberger, Provident Life Insurance Company,

Arthur F. Anderson and Beda S. Anderson, Kenneth A. Schultz

and Yvonne L. Schultz, Charles L. Northrop and Minnie

Northrop, L. G. Kruse and Orpha Kruse, Leo J. Flammang and

Hazel M. Flammang, Samuel J. Stubbs, Otto Engen, Earl A.

Jordahl and Gladys M. Jordahl, First National Bank, Minot,

Bertha Hill, John A. Moldstad, A. L. Landis, Ingel C.

Smette, Juliana Schmalz, and all other persons unknown

claiming any estate or interest in or lien or encumbrance on

the property described in the complaint, Defendants and

Appellants.

No. 7515.

Supreme Court of North Dakota.

June 6, 1955.

Rehearing Denied June 30, 1955.

Syllabus by the Court

1. Statutes conferring the power of eminent domain will be strictly construed, but if a statute confers such power it will be liberally and reasonably construed so as to make its purpose effective.

2. The power of eminent domain may be conferred by the legislature either expressly or by necessary statutory implication.

3. A special school district has express statutory authority to acquire a school site and grounds by eminent domain.

4. Where the legislature has left to the discretion of the board of education the determination of the extent of the area necessary for a schoolhouse site and grounds, that discretion is not reviewable in the courts except where there has been a gross abuse of discretion or manifest fraud.

5. For reasons stated in this opinion it is held that the trial court did not err in overruling objections to the admission in evidence of certified copies of minutes of the board of education setting forth the necessity for acquiring certain property for a schoolhouse site and grounds and setting forth reasons why the necessity existed.

McGee & Van Sickle, Minot, for plaintiff and respondent.

Bosard & McCutcheon, Minot, for defendants and appellants.

MORRIS, Judge.

This is a civil action brought by the Board of Education of the City of Minot, organized as a body corporate pursuant to the provisions of Section 15-27, NDRC 1943, against the Park District of the City of Minot, certain named individual defendants, and all other persons unknown claiming any estate or interest in or lien or encumbrance upon the property described in the complaint, which is Lot 4, Block 8 of the Original Plat of North Minot designated as Lincoln Park and dedicated to the public use of the inhabitants of the City of Minot. The park consists of 12.91 acres. The plaintiff seeks to obtain fee simple title to this land for public school purposes through the exercise of its power of eminent domain under the provisions of Chapter 32-15, NDRC 1943. The park district owns the property subject to the reversionary interests of certain individuals who are named as parties defendant.

The defendant park district demurred to the complaint on two grounds--first, that the plaintiff has not legal capacity to bring the action; and second, that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled. The park district answered by a general denial and an admission of certain more formal parts of the complaint. It also made specific allegations questioning the power of the plaintiff to exercise the right of eminent domain and denied that the public use to which the plaintiff sought to apply the property was more necessary than the public use to which the property was being put by the park board. It also alleged that the property was of the value of $100,000. A number of individual defendants also answered challenging the power of the plaintiff to take the property by eminent domain and further alleging that if the property is to be condemned and taken for school purposes certain property owned by various individual answering defendants would be damaged and depreciated in the sum of $500 per lot. Trial was had to the court without a jury upon all issues except that of damages. The court made findings of fact from which he drew the following conclusions of law:

'1. That the plaintiff, the Board of Education of the City of Minot is empowered and entitled to the exercise of the right of eminent domain to acquire Lot 4, Block 8; North Minot from the Park District of the City of Minot for use as a site for school facilities.

'2. That the use of Lot 4, Block 8; North Minot, by the Board of Education of the City of Minot, for the construction of a junior high school is a use authorized by law.

'3. That the taking of Lot 4, Block 8; North Minot and of the whole thereof is necessary to its use as a site for a new junior high school.

'4. That the public use of Lot 4, Block 8; North Minot and the whole thereof as a site for the construction of a junior high school is a more necessary public use than its use by the Park District of the City of Minot as a public park.

'5. That the defendants herein are entitled to a determination by a jury of the question of damages herein.

'6. That upon determination of the question of damages, a judgment of appropriation and condemnation in form provided by law should be made and entered herein.'

The defendants demanded a trial by jury on the issue of damages. A jury was drawn pursuant to order of the court and after a trial on the issue of damages the jury assessed compensation and damages payable to the park district as compensation for land taken in the sum of $25,820. It found no damages for property not taken but claimed to have been injuriously affected. Judgment was entered pursuant to the conclusions of law of the court and the verdict of the jury condemning the land for the use of the plaintiff and awarding the park district $25,820 as compensation for its taking, together with costs and disbursements. The defendants appealed and demanded a trial de novo and also served and filed specifications of error including the assignment that the court erred in overruling the defendants' demurrer.

Counsel for the defendants and appellants earnestly and ably argues that Chapter 32-15, NDRC 1943, is primarily procedural and that, though it sets forth the purposes for which eminent domain may be exercised, it is not a grant of power and that the power to exercise the right of eminent domain must be found in other statutes directly granting it. It is then asserted that the legislature has never granted to special school districts the power to exercise the right of eminent domain. These contentions require a meticulous study of statutes pertaining to eminent domain and the acquisition of real property by school districts.

Statutes conferring the power of eminent domain will be strictly construed. Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 867. But if a statute confers such power it will be liberally and reasonably construed so as to make the purpose effective. Petersburg School District v. Peterson, 14 N.D. 344, 103 N.W. 756. The power of eminent domain may be conferred by the legislature either expressly or by necessary statutory implication. San Joaquin & Kings River Canal & Irrigation Co. v. Stevinson, 164 Cal. 221, 128 P. 924; People v. Superior Court, 10 Cal.2d 288, 73 P.2d 1221; Chicago, Burlington & Quincy Railroad Co. v. Cavanagh, 278 Ill. 609, 116 N.E. 128; School District of Columbia v. Jones, 229 Mo. 510, 129 S.W. 705; McQuillin, Municipal Corporations, 3d Ed., Section 32.12; 29 C.J.S., Eminent Domain, Sec. 22; Nichols on Eminent Domain, 3d Ed., Section 3.222(3).

A special school district 'shall possess all the powers and shall perform all the duties usual to corporations for public purposes or conferred upon it by law. Under the name, it may sue and be sued, enter into contracts, and convey such real and personal property as shall come into its possession by will or otherwise.' Section 15-2702, NDRC 1943. Among the powers conferred upon the board of education of a special school district we find the following set forth in Section 15-2908, NDRC 1943:

'2. To establish and maintain such schools in its district as it shall deem requisite or expedient, and to change or discontinue the same; * * *

'4. To purchase, sell, exchange, and hire schoolhouses and rooms, lots, or sites for schoolhouses, and to fence and otherwise improve...