Haggard v. Indep. Sch. Dist. of Algona

• Decision Date: 12 April 1901
• Citation: 113 Iowa 486,85 N.W. 777
• Parties: HAGGARD v. INDEPENDENT SCHOOL DIST. OF ALGONA.
• Court: Iowa Supreme Court

113 Iowa 486

85 N.W. 777

HAGGARD

v.INDEPENDENT SCHOOL DIST. OF ALGONA.

Supreme Court of Iowa.

April 12, 1901.

Appeal from district court, Kossuth county; W. B. Quarton, Judge.

Plaintiff appealed to the district court from the award of damages in a proceeding to condemn for school purposes a part of a lot owned and used by him in connection with another lot occupied as his residence. The district court increased the allowance of damages from $250 to $350, and the defendant appeals. Modified.Sullivan & McMahon, E. V. Swetting, and E. A. Morling, for appellant.

Clarke & Cohenour, for appellee.

McCLAIN, J.

1. The notice of appeal to the district court was properly entitled, but was addressed, “To Said Defendant, E. B. Butler, President of the Board of Directors of Said Independent School District of Algona, Kossuth County, Iowa, and F. Van Erdewyk, County Superintendent of Kossuth County, Iowa,” and the service was as follows: “Service accepted October 8, 1898. E. B. Butler, President Board of Directors Independent School District, Algona, Iowa. Frank Van Erdewyk, County Superintendent, Kossuth County, Iowa.” Appellant insists that for two reasons this notice was not sufficient: First, because it was not directed to and served upon the independent school district; and, second, because it was served upon the county superintendent instead of the sheriff of the county. As to the first of these objections, we think it is not well taken. The view of the appellant seems to be that the notice was directed to the president of the board of directors, and was served upon him. But the title of the case, as given in the notice, showed that the independent school district alone was defendant. The recital of the name of the president in the direction part of the notice was surplusage, and may be disregarded. Omitting these words, the notice is directed, “To Said Defendant,” and the notice thus directed was served upon “E. B. Butler, President,” etc. By statute, an original notice in an action against an independent school district may be served on the president. Code, § 3531. It is immaterial that the president was individually named in the direction part of the notice. The material facts are that the notice was directed to the independent district, and service was made on the president thereof. This is sufficient. With reference to the second objection, it is to be noticed that the proceeding for condemnation of land for school purposes is to be instituted before the county superintendent, and that from the assessment made in the proceeding before him “each party may appeal to the district court by giving notice thereof as in case of taking private property for works for internal improvement.” Code, § 2815. The provision with reference to the proceeding to condemn private property for works of internal improvement is that the sheriff of the county shall, upon written application, appoint six freeholders, etc., who shall assess the damages to be sustained, and make report in writing to the sheriff. Code, § 1999. Therefore the provision as to taking property for school purposes differs from that as to taking property for internal improvements, in that in one case the proceeding is instituted before the county superintendent, while in the other case it is instituted before the sheriff. Now, the appeal is to be taken as we have said, “by giving notice thereof as in the case of taking private property for works of internal improvement,”--that is, in the same manner; and we hold that to serve the notice on the county superintendent in the one case is equivalent to serving it on the sheriff in the other. It would be absurd to serve the notice on the sheriff, when the sheriff has had nothing whatever to do with the matter, and equally absurd to give no notice to the county superintendent, when he is the officer before whom the proceedings have to be conducted. While statutes are to be construed according to their language, yet the language is to be given a reasonable interpretation; and it seems to us that serving the notice on the county superintendent is in accordance with the direction that the appeal in school condemnation cases shall be taken in the same manner as is provided when service on the sheriff is required in proceedings to condemn for works of internal improvement. Therefore the objections of appellant with reference to notice of appeal to the district court are unfounded.

2. Appellant excepted to the testimony of witnesses with reference to the annoyance or other inconvenience which might result from the establishing of a school house, with the effect of depreciating the value of appellee's property, and contends that the location of a school building on property adjoining that of appellee used for a residence is not a matter which can be taken into account in estimating appellee's damages; and in the same connection appellant objects to an instruction given by the court to the effect that “the jury should consider not only the loss of the land and improvements actually taken, but the condition in which the premises are left after the appropriation, and every inconvenience naturally resulting from such appropriation by which the market value of the premises was unfavorably affected”; and, further, that they should “take into consideration the natural and probable effect of the use for which the property is condemned,” and “in what way the taking of the property for school purposes will inconvenience the plaintiff in the use of the remainder of his property or lessen its value.” The jurors were also instructed to determine appellee's damages as indicated by “the difference between the fair market value of the whole tract as above described immediately before the appraisement and appropriationof” the part of a lot in question “and the fair market value of the remaining portions * * * immediately after the appraisement and appropriation” of such part lot, and that they were “to ascertain from the evidence the damages which the plaintiff will sustain in consequence of this appropriation of a part of his property.” With reference to these rulings and instructions the appellant complains that the jurors were improperly authorized to consider the damages to the entire premises owned and occupied by appellee, and that they were also authorized to take into account damages to the entire premises due to the erection and maintenance of a school house on adjoining premises comprised in part of the portion of a lot taken from him. In order to understand more clearly the question involved, it is proper to state that appellee was the owner, when these proceedings were instituted, of the southeast corner lot of block 84 in Algona, and also of the south half of the northeast corner lot, and the south half of the lot next west of the northeast corner lot of that block, and that the house occupied by him as a residence was situated on the southeast corner lot, while his barn, chicken house, and other improvements were on the two south half lots to the north, separated by an alley from the lot on which the house is situated. The proceeding as instituted was to condemn for school purposes the west one of these two half lots, which, in connection with the remainder of block 84, is to be used as the site for a school house. The trial court correctly held that the damage occasioned to appellee by the appropriation of this half lot was not to be limited to the value of the land taken, but might include the damage to the entire premises of appellee, owned and occupied by him together as his residence. This is in accordance with the well-settled doctrine in regard to measure of damages in case of appropriation of a part of an entire tract for railroad right of way. Doud v. Railway Co., 76 Iowa, 438, 41 N. W. 65;Cox v. Railway Co., 77 Iowa, 20, 41 N. W. 475. The fact that the two half lots are separated from the lot on which appellee's house is situated by an alley is immaterial. In right of way cases it is well settled that damage to the entire premises occupied together for one purpose may be considered,...