Boise City v. Boise City Development Co., Ltd.

• Court: Idaho Supreme Court
• Writing for the Court: GIVENS, J.
• Citation: Boise City v. Boise City Development Co., Ltd., 41 Idaho 294, 238 P. 1006 (Idaho 1925)
• Decision Date: 03 August 1925
• Parties: BOISE CITY, a Municipal Corporation, Respondent, v. BOISE CITY DEVELOPMENT COMPANY, LTD., a Corporation, and H. L. SMITH, Jr., Appellants. BOISE CITY, a Municipal Corporation, Respondent, v. MARTHA J. JOHNS, Appellant

238 P. 1006

41 Idaho 294

BOISE CITY, a Municipal Corporation, Respondent, v. BOISE CITY DEVELOPMENT COMPANY, LTD., a Corporation, and H. L. SMITH, Jr., Appellants.

BOISE CITY, a Municipal Corporation, Respondent, v. MARTHA J. JOHNS, Appellant

Supreme Court of Idaho

August 3, 1925

NONSUIT-MUNICIPAL CORPORATIONS-ANNEXATION-ORDINANCES-EVIDENCE-EMINENT DOMAIN-STREETS.

1. When a motion of nonsuit is made at the close of plaintiff's evidence and is denied, and the defendant thereafter submits evidence in support of the defense, the motion for nonsuit is waived, unless renewed at the close of all the evidence.

2. In the exercise of the power of eminent domain a city council may determine the location of land required for municipal purposes and such determination if made in good faith will not be interfered with by the courts.

3. Land to be annexed under C. S., sec. ^50, must be contiguous or adjacent to a city, town or village.

4. Land to be annexable under C. S., sec. 3850, must, as to part thereof, have been, by the owner or proprietor, or with his authority or acquiescence, either laid off in lots or blocks containing not more than five acres of land each, or the owner or proprietor, or some person with his authority, must have sold or begun to sell such lands, by metes and bounds in tracts not exceeding five acres.

5. Under C. S., sec. 3850, portions of the owner's original holdings still remaining in his possession after platting or selling, in addition to that so platted or sold or commenced to be sold, may be annexed.

6. Evidence examined and held to show that the appellant has begun to sell and has sold in less than five-acre tracts portions of her original holdings, and that the city council did not abuse its discretion in annexing, by proper ordinance, the portions of her land designated in said ordinance.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Actions to condemn lands for purpose of road. Judgments for plaintiff. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent.

Wm Healy, for Appellant Johns; J. R. Smead, for Appellants Boise Development Co. and H. L. Smith, Jr.

Where statutory conditions are imposed, they must be strictly observed. (1 McQuillin, Munic. Corp., sec. 282; People v. Long Beach, 155 Cal. 604, 102 P. 664; Pensacola v. Pensacola & A. Ry. Co., 21 Fla. 492; Stilz v. Indianapolis, 55 Ind. 515; Stewart v. Adams, 50 Kan. 560, 32 P. 122; Bardstown v. Hurst, 121 Ky. 119, 89 S.W. 147, 724; Lebanon v. Knott, 24 Ky. L. 1992, 72 S.W. 790; Matter of Matthews, 59 A.D. 159, 69 N.Y.S. 203; Stewart v. Schoonmaker, 50 Kan. 573, 32 P. 913; Brown v. Silverton, 97 Ore. 441, 190 P. 971; Sharkey v. Butte, 52 Mont. 16, 155 P. 266; Pueblo v. Stanton, 45 Colo. 523, 102 P. 512.)

When a power arises from the occurring of facts extraneous to the official actions of city officers, the power is not presumed, but the city must show that it existed by proving the pre-existence of the necessary facts. (Reynolds v. Schweinefus, 27 Ohio 311; Hammond v. Baddeau, 134 La. 871, 64 So. 803; State v. Threadgill, 76 N.C. 17; Dunham v. Rochester, 5 Cow. (N. Y.) 462; Chandler v. Kokomo, 137 Ind. 295, 36 N.E. 847; 1 McQuillin, Munic. Corp., secs. 284, 286, 856 (Supp.); Ernsperger v. Mishawaka, 168 Ind. 253, 80 N.E. 543; Jones, Evidence, sec. 514; Larkin v. Burlington, C. R. & N. Ry. Co., 85 Iowa 492, 52 N.W. 480.)

The offer of evidence of an ordinance, or a record of proceeding, does not tend to prove that the power to act existed. It must be otherwise proven that the power existed at the time the action was taken. (City of Benwood v. Wheeling R. Co., 53 W.Va. 465, 44 S.E. 271; Schott v. People, 89 Ill. 195; 2 Dillon, Munic. Corp., sec. 649.)

Where a municipality claims to have acted by virtue of power delegated to it by statute, the power claimed in the premises must appear plainly and without ambiguity in the language of the statute. (State v. Frederic, 28 Idaho 709, 155 P. 977; Turner v. Roseberry, 33 Idaho 746, 198 P. 465; Bradbury v. Idaho Falls, 32 Idaho 28, 177 P. 388; People v. Long Beach, supra; Stewart v. Adams, supra; State v. Superior Court, 110 Wash 506, 188 P. 546; Lewis, Eminent Domain, sec. 371, p. 681, Wibaux Imp. Co. v. Breitenfeldt Co., 67 Mont. 206, 215 P. 222; State v. District Court, 67 Mont. 164, 215 P. 240.)

Eminent domain cannot be exercised because of the needs of another than the party exercising it. (Spokane v. Spokane & I. E. Ry. Co., 75 Wash. 651, 135 P. 636.)

Power is not held to be implied except where such implication is necessary in order to accomplish the purpose of the statute. (Crofut v. Danbury, 65 Conn. 294, 32 A. 365.)

Plea of great public benefit does not alter the rule of strict construction of statute claimed to delegate power. (Vermont H. E. Corp. v. Dunn, 95 Vt. 144, 112 A. 223, 12 A. L. R. 1495, 1502.

J. J. McCue, J. P. Pope, C. S. Hunter and Henry Z. Johnson, for Respondent.

In the exercise of the power of eminent domain, a city council may determine the location of the land required, and such determination will not be interfered with by the courts if made in good faith. (20 C. J. 632-634; City of Pasadena v. Stimson, 91 Cal. 234, 27 P. 604; Chicago & N.W. Ry. Co. v. Morrison, 195 Ill. 271, 63 N.E. 96; Bennett v. Marion, 106 Iowa 628, 76 N.W. 844; Burnett v. Boston, 173 Mass. 173, 53 N.E. 379; McQuillin on Munic. Corp., sec. 1466; Castro Point Ry. & Terminal Co. v. Anglo Pacific Dev. Co., 33 Cal.App. 418, 165 P. 544; Santa Ana v. Brunner, 132 Cal. 234, 64 P. 287; Kansas & Texas Coal Ry. v. N.W. Coal & Min. Co., 161 Mo. 288, 84 Am. St. 717, 61 S.W. 684; City of Seattle v. Byers, 54 Wash. 518, 103 P. 791.)

The annexation Ordinance No. 1405 was properly admitted in evidence, the existence of the necessary facts to sustain such ordinance being presumed. The lower court did not err in denying motion for a nonsuit. (State v. City of Atchison, 92 Kan. 431, Ann. Cas. 1916B, 500, 140 P. 873; Blake v. City of Pleasantville, 87 N.J.L. 426, 95 A. 113; American Fork City v. Chalier, 43 Utah 231, 134 P. 739; State v. City of Maplewood (Mo. App.), 193 S.W. 989; Haywood v. New York Cent. & H. R. R. Co., 59 Hun, 617, 13 N.Y.S. 177; McQuillin on Mun. Ord., sec. 384; McQuillin on Mun. Corp., secs. 794, 860; Horner v. City of Atchison, 93 Kan. 557, 144 P. 1010; State v. City of Harper, 94 Kan. 478, Ann. Cas. 1917B, 464, 146 P. 1169, 1170; note, Ann. Cas. 1916B, pp. 502-504; Harmon v. City of Chicago, 140 Ill. 374, 29 N.E. 732.)

C. S., sec. 3850, should be so construed as to effect the intention of the legislature. (Lewis' Sutherland on Stat. Construction, sec. 521; Black, Interpretation of Laws, sec. 47.)

C. S., sec. 3850, is an express grant of power, and the extent to which that power shall be exercised rests in the discretion of the municipal authorities, so long as it is exercised in good faith and for a municipal purpose. (19 R. C. L. 770; State v. Tampa Water Works, 56 Fla. 858, 47 So. 358, 19 L. R. A., N. S., 183; Lucia v. Montpelier, 60 Vt. 537, 15 A. 321, 1 L. R. A. 169, and note.)

GIVENS, J. Wm. E. Lee, J., and Varian, D. J., concur.

OPINION

GIVENS, J.

By stipulation the case of Boise City, a Municipal Corporation, v. Martha J. Johns, together with that of Boise City, a Municipal Corporation, v. Boise Development Company, Ltd., a Corporation, and H. L. Smith, Jr., were consolidated for hearing; involving questions of public importance, the parties asked for a speedy hearing and disposition of the cases, which was granted.

The appeals were taken respectively from judgments entered by the lower court, that Boise City was authorized to condemn certain property of the respective appellants for the purpose of laying out, opening and constructing a highway, adjudging inferentially that certain of the lands so sought to be condemned had been properly annexed. By stipulation both appeals are based on one transcript of the evidence.

Considering the Johns case first we proceed:

Boise City was originally created by an act of Congress, with Boise River as a boundary line. (Act of July 11, 1866, Special and Local Laws of Idaho, p. 22.) The subdivision of the appellant lying south of the Boise River was later annexed and the south boundary line of the subdivision became the city limits.

In 1923, the Oregon Short Line Railroad Company located its main line, and passenger depot thereon, some distance to the south of the city limits of Boise City, on an elevated plateau, known as the "bench."

After the location of the railroad depot, the city council decided to extend Seventh Street from north of Boise River as a boulevard, thence through the middle of the platted subdivision owned by appellant Development Company and through the Johns' and other property in a straight line to such railroad depot. For about the last thousand feet the side-lines of the proposed approach diverged to form a wider tract, designed as the base of a fill, the highway to be elevated on a grade of five feet to each hundred of lineal distance, eventually rising at the extreme end, to the elevation of the bench upon which the station stands, a height of about thirty feet.

The highway so projected is planned to run through its entire course diagonally across, and at an elevation considerably above the elevation of existing streets and sidewalk levels upon appellant company's property. On reaching appellant Johns' property, the proposed five per cent grade commences.

A paved street runs through the Development Company's property known as Ninth Street pike, which connects at its north end with Eighth and Ninth Streets in Boise City at the Ninth Street bridge spanning the Boise River, and at the southerly end joins...