Buckwalter v. School District No. 42

• Decision Date: 08 November 1902
• Docket Number: 12,630
• Citation: 70 P. 605,65 Kan. 603
• Parties: LAURA BUCKWALTER v. SCHOOL DISTRICT No. 42, NEOSHO COUNTY, KANSAS
• Court: Kansas Supreme Court

70 P. 605

65 Kan. 603

LAURA BUCKWALTER v. SCHOOL DISTRICT No. 42, NEOSHO COUNTY, KANSAS

No. 12,630

Supreme Court of Kansas

November 8, 1902

Decided July, 1902.

Error from Neosho district court. L. STILLWELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SCHOOLS AND SCHOOL DISTRICTS -- Acquisition of Site by Condemnation Proceedings. Condemnation proceedings by a school district in the exercise of the power of eminent domain for the purpose of acquiring a schoolhouse site, under the provisions of section 6131, General Statutes of 1901 divest the owner of title thereto, even though he at the time had only an equitable title, and thereafter received the legal title.

2. SCHOOLS AND SCHOOL DISTRICTS -- Notice to Owner Immaterial. Such proceedings are efficient for that purpose although no notice thereof is provided for in that or any other statute or constitutional provision, and although no notice was given the owner.

3. SCHOOLS AND SCHOOL DISTRICTS -- Compensation not a Condition Precedent. Unless prohibited by some constitutional or statutory provision, a school district may appropriate a portion of land belonging to a citizen for a schoolhouse site without first making compensation, such appropriation being for a public purpose, and means being provided the owner for the determination of the value of the property so taken by due process of law.

David B. Crewson, for plaintiff in error.

J. L. Denison, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

This was an action in ejectment to recover the possession of one acre of land upon which was erected the schoolhouse of defendant in error. This land was a portion of a tract known as "Osage ceded lands." Prior to the time that plaintiff had settled upon this tract with a view of acquiring title thereto, and while it was yet government land, this school building was erected. On November 14, 1885, the plaintiff in error, plaintiff below, having complied with the requirements of the federal laws, and made full payment for the land, received what is commonly known as a "receiver's receipt," which evidenced her right to a patent for the land, which patent she received on the 28th day of December, 1886. Proceedings were inaugurated by the school district to condemn the schoolhouse site, already occupied, on July 28, 1886. These proceedings ripened into an order of condemnation, as provided by section 6131, General Statutes of 1901, that section being then in force, and were pleaded by the school district in defense to plaintiff's action. The court below held that these proceedings were sufficient to vest title to the acre of land in dispute in the school district, and gave judgment in its favor and against the plaintiff. She is here insisting that these proceedings were insufficient and void for two reasons.

She first contends that they were had while the land yet belonged to the government and before the plaintiff received her title, and, therefore, that she could not in any way be affected thereby. It must be borne in mind, however, that, before these condemnation proceedings, she had done all the things required by the government to be by her performed, and had made full payment for the land, and had already thereby been vested with the equitable title, needing only the legal title, which would come to her by the patent, to make her title in all respects perfect as against every one but the government. She was the efficient owner, and, even as against the government, she was the equitable owner. In addition to this, section 4831, General Statutes of 1901, which was then in force, provided:

"The usual duplicate receipt of the receiver of any land-office, or, if that be lost or destroyed, or beyond the reach of the party, the certificate of such receiver that the books of his office show the sale of a tract of land to a certain individual, is proof of the title equivalent to a patent against all but the holder of an actual patent."

Clearly, plaintiff in error was, at the time of these condemnation proceedings, the owner of this land, so that these proceedings, if in themselves sufficient, divested her of title thereto. We therefore proceed to inquire whether they were sufficient for this purpose.

The objection made by the plaintiff in error to them is that no notice of their pendency or progress was given her. This is true. Was notice necessary? It is claimed that private property may not be taken for public use without due process of law and full compensation, and that due process of law requires notice to be given to the party to be affected. This land was taken for a public purpose and by the exercise of the power of eminent domain. The only provision in our fundamental law limiting the exercise of this power is that contained in section 4 of article 12 of the constitution, which is:

"No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by a deposit of money, to the owner. . . ."

The bill of rights also provides that "all persons, for injuries suffered in person, reputation, or property, shall have remedy by due course of law." Now, section 6131 General Statutes of 1901, under which these condemnation proceedings were had, provides that, if any school district had in good faith, but by mistake or otherwise, built a schoolhouse upon land to which the school district at the time of the erection of such school building had not the equitable title, then, upon written application of the district board, it shall be the duty of the probate judge of the county in which such school site is situated to appoint three disinterested freeholders of such county, not residents of the district, to condemn and appraise such site; that said appraisers shall proceed to make such appraisement within ten days and make report, describing the lands condemned and appropriated and the value thereof, which report is to be filed in the office of the register of deeds of the county, and by him recorded as other instruments of writing affecting the title to real estate; and directs that, within thirty days after the report is filed in the office of the register...