City of Fargo v. Keeney

• Decision Date: 28 October 1902
• Docket Number: 6731
• Citation: 92 N.W. 836,11 N.D. 484
• Court: North Dakota Supreme Court

92 N.W. 836

11 N.D. 484

CITY OF FARGO v. GORDON J. KEENEY, et al

No. 6731

Supreme Court of North Dakota

October 28, 1902

Appeal from district court, Cass county; Pollock, J.

Action by the city of Fargo against Gordon J. Keeney and others to condemn land. Judgment set aside, and defendants appeal. Affirmed in part.

Order sustained in part.

Morrill & Engerud, for appellants.

M. A Hildreth, for respondent.

OPINION

WALLIN, C. J.

The facts in the record which we deem important to a decision of this case, briefly stated, are as follows: The defendants Patrick Devitt and Lottie E. Keeney are, and when this action commenced were, the owners, as tenants in common, of a certain strip of land 40 feet in width within the city of Fargo; said land consisting of 14 lots, numbered from 1 to 14, inclusive, and embraced within Keeney & Devitt's Third addition to the city of Fargo. It appears that said strip of land is parallel to and adjoins a certain street of said city, viz., Seventh avenue north; and it further appears that, in the opinion of the city council, it was necessary to so enlarge and widen said Seventh avenue north as to embrace said strip of land, and the whole thereof. The record shows that on December 10, 1901, the city council of the city of Fargo, being then in session, adopted a certain resolution looking to the acquisition of the title to the strip of land in question. Said resolution, so far as the same is now material, is as follows: "Be it resolved by the common council of the city of Fargo, that it is necessary to the well-being of said city and the citizens thereof, and particularly to those people who live along and adjacent to 7th Ave. north, that the said 7th avenue be opened its full width as a street." Here follows a description of the land in question. After describing the land, the resolution proceeded as follows: "Furthermore, that the city attorney be empowered and is hereby instructed to commence condemnation proceedings for the purpose of acquiring possession of the tracts as above described, for the use of the city as a street." Soon after the adoption of the resolution by the city council, this action was instituted H. F. Miller, as attorney, appearing for the city, and Morrill & Engerud appeared for the defendant Lottie E Keeney; and S. G. Roberts, then an alderman of the city appeared as attorney for the defendant Patrick Devitt. It will not be necessary to set out the pleadings in the action further than to state that the complaint set out the substance of said resolution of December 10, 1901, and other facts tending to show that the strip of land in question was needed for a public purpose, viz., for widening said Seventh avenue north. The relief demanded was, in substance, that the land in question should be condemned for the use of said city as a street, and that the court should determine the value of the use of such land for street purposes. The defendants Patrick Devitt and Lottie E. Keeney answered separately, but the answers raised no substantial issues, but, on the contrary, practically conceded that said land was needed for public use as stated in the complaint. But it was alleged in said answers, respectively, that the total value of said land was the sum of $ 6,000. After issue was so joined in the action, counsel entered into a stipulation whereby a jury trial was waived, and counsel consented that the trial court should appoint three referees to try all the issues embraced in the action, and upon such stipulation the trial court, by its order, appointed three referees to try all the issues. The record further shows that said referees, after taking the statutory oath, proceeded to take the evidence offered by the respective parties. There was some formal evidence offered relating to the title of the land in question, about which there is now no dispute, and two witnesses were sworn as to the value of the land, and both testified, in effect, that its aggregate value was $ 5,000. The record shows the further fact that a certified copy of a certain other resolution of the city council, adopted March 3, 1902, was put in evidence by the city attorney without objection, which resolution is as follows: "Be it resolved by the mayor and common council of the city of Fargo, that it is necessary and essential to the well-being and growth of said city, and particularly to the persons residing along Seventh avenue north and adjacent thereto, that said Seventh avenue, which is now only forty feet in width, be opened and widened forty feet more by the purchase and addition thereto of forty feet of land extending from Broadway to Second street, along said Seventh avenue north, making the width of said street, when so opened, eighty feet and uniform with other streets." Upon the hearing of the order to show cause evidence was received showing the publication of the last-mentioned resolution in the official newspaper of the city. The record of the proceedings had at said council meeting held March 3, 1902, embraces the following entry: "The city attorney reported verbally that progress was being made in the matter of condemning and securing Keeney & Devitt's Third addition for street purposes." Also the following: "Upon motion by Alderman Roberts, the city attorney was instructed to proceed with the condemnation proceedings upon the lines indicated in his report." The undisputed evidence also showed that there was not, at the time of the trial, a dollar available in the city treasury with which to pay any judgment against the city. After taking the evidence the referees submitted their report to the court, embracing findings of fact and conclusions of law. The findings of the referees need not be set out further than to state that the referees found as facts that the city council adopted said resolution of December 10, 1901; that the plaintiff by this action, is seeking to acquire the strip of land in question for public use as a street; that the land sought is necessary and ought to be acquired for such use; and that the defendants Lottie E. Keeney and Patrick Devitt are the sole owners of the land, and that the land is of the aggregate value of $ 5,000. As conclusions of law the referees found as follows: "Conclusions of Law; (1) That the said plaintiff city of Fargo has the right and power conferred upon it by law to lay out, open, grade, and otherwise improve the streets within its corporate limits; and that when it becomes necessary, in order to make any of said improvements herein specified, to take or damage private property, said plaintiff corporation may exercise the right of eminent domain for any public use authorized by law, in the manner provided in chapter 35 of the Code of Civil Procedure of the Revised Codes of North Dakota, and has the power to exercise the right of eminent domain in the taking of the property in the complaint and in the findings of fact herein mentioned and described, and have the same condemned for the proposed public use as a street. (2) That the damage for the taking of the said lots and parcels of land hereinbefore described, as aforesaid, is five thousand dollars ($ 5,000.00)." The report of the referees was confirmed, and judgment was entered in the trial court to the effect that the said owners of the land should, respectively, have judgment against the city for the sum of $ 2,500 and costs, and that the land in question should be condemned for said street purposes, and that the title thereof be, and the same was, by the terms of the judgment, vested in the city of Fargo. This judgment was entered March 7, 1902. Later, upon an affidavit made by M. A. Hildreth, and other proofs, the trial court issued an order to show cause why the judgment so entered should not be vacated and set aside, or for such other and further relief as the court might deem proper to grant. No counter affidavits were submitted. The hearing of the order to show cause resulted in an order of the district court vacating said judgment and granting a new trial, and from such order the defendants have appealed to this court.

The affidavit of M. A. Hildreth, upon which the order to show cause was issued, is as follows: "M. A. Hildreth, being duly sworn, says he is city attorney and attorney for the plaintiff in this proceeding. That upon taking the office on the 15th of April, 1902, he was ordered by the common council of the city of Fargo to investigate the judgment against the city of Fargo in this action, and report at the next meeting of the common council. That he did make such report to the common council on the 5th day of May, 1902. That he advised the common council that such judgment was invalid, and should be vacated and set aside. Affiant makes a part of this affidavit a certified copy of the proceedings of the common council relating to the instituting of this suit. That under section 2279 of the Civil Code of this state it was necessary that the common council pass a resolution to open up the street in question and to have the same condemned for street purposes. That, from the records of the common council, said resolution was passed on the 3d day of March 1902. That it was voted for and by, among other common councilmen, by the Hon. S. G. Roberts. That this resolution was published on March 8, 15, 22, and 29, 1902, and that said suit was at that time pending in this district court of this county and state the same having been brought on the 20th day of January, 1902. That before the completion of the time specified in said notice under the said section a judgment was entered in this action. That affiant refers to the judgment roll and all the papers attached thereto, and makes the same a part of this motion, and will refer to the same upon the argument thereof. Affiant...