Independent Consol. School Dist. No. 66 v. Big Stone County, 36335

• Citation: 67 N.W.2d 903,243 Minn. 341
• Decision Date: 24 December 1954
• Docket Number: No. 36335,36335
• Parties: INDEPENDENT CONSOLIDATED SCHOOL DISTRICT NO. 66 et al., Respondents, v. BIG STONE COUNTY et al., Respondents, Lismore Stock Farm, Petitioner, Appellant. In re Setting off and ANNEXATION OF LANDS FROM SCHOOL DISTRICT NO. 7 TO SCHOOL DISTRICT NO. 3.
• Court: Supreme Court of Minnesota (US)

Page 903

67 N.W.2d 903

243 Minn. 341

INDEPENDENT CONSOLIDATED SCHOOL DISTRICT NO. 66 et al., Respondents, v. BIG STONE COUNTY et al., Respondents, Lismore Stock Farm Petitioner, Appellant In re Setting off and ANNEXATION OF LANDS FROM SCHOOL DISTRICT NO. 7 TO SCHOOL DISTRICT NO. 3.

No. 36335.

Supreme Court of Minnesota.

Dec. 24, 1954.

Syllabus by the Court.

1. M.S.A. § 122.15, which governs procedure for transfer of lands from one school district to another upon petition of owner, authorizes board of county commissioners to direct such transfer, and where petition is presented prior to election for proposed Independent Consolidated School District which encompasses land sought to be transferred by the petition, the approval of the newly consolidated district is not required therefor. Where petition for transfer was properly filed prior to such election and all statutory requirements with reference to publishing, posting, and mailing notice of hearing thereon have been complied with, board of county commissioners had jurisdiction to direct transfer of lands under § 122.15.

2. Where one-half section of transferred lands 'cornered' on half section comprising or adjacent to lands forming part of school district, the former may be said to properly adjoin such district within the contemplation of § 122.15.

3. Cross-assignments of error are not authorized here, and party, by failing to appeal, waives his objections to findings, judgment, or order based thereon.

F. L. and E. V. Cliff, Ortonville, for appellant.

O. K. Alger and Clayton A. Gay, Morris, for respondents.

THOMAS GALLAGHER, Justice.

Appeal from a district court judgment which reversed an order of the board of county commissioners of Big Stone county, directing transfer of appellant's lands from school district No. 7 to school district No. 3 of said county. The lands transferred were the east one-half of section 29, the north one-half of section 33, and the south one-half of section 32 in township 123, and lots 1, 2, 3, and 4, section 5, township 122, Big Stone county. Appellant, Lismore Stock Farm, is a family corporation engaged in farming operations on the property described.

Lots 1, 2, 3, and 4 of section 5 and the south one-half of section 32, township 122, adjoin school district No. 3 on its westerly boundary line for a distance of three-quarters of a mile, while the north one-half of section 33 thereof adjoins school district No. 3 for a distance of approximately one mile on the northerly boundary of said district. The east one-half of section 29, township 123 of such lands, however, merely 'corners' at its southeast corner, on the northwest corner of the north one-half of section 33, township 123.

Prior to December 3, 1952, pursuant to M.S.A. § 122.15, appellant filed with the county auditor of Big Stone county, a petition for transfer of the lands described to school district No. 3. Hearing thereon, set by the board for December 3, 1952, was then postponed until January 6, 1953, and on the latter date adjourned to February 4, 1953. In the meantime, on December 16, 1952, an election was held in Big Stone county under § 122.52 for the creation of Independent Consolidated School District No. 66 to include within its boundaries all of school district No. 7 in which were located appellant's lands.

On February 4, 1953, the board of county commissioners made its order transferring the land described from district No. 7 to district No. 3, thus placing it beyond the boundaries of new Independent Consolidated School District No. 66. The latter, together with certain landowners in the new district, thereupon appealed to the district court from the board's order.

The court found that due notice of hearing on the petition for transfer was given by publication in the Ortonville Independent on December 18, 1952, and December 25, 1952, by posting in school district No. 3 and No. 7 on December 22, 1952, and by mailing to the clerks of school district No. 3 and No. 7 on December 22, 1952; that on December 26, 1952, the county superintendent of schools of Big Stone county had issued her order of reorganization for Independent Consolidated School District No. 66; that on January 26, 1953, its officers had been elected; and that no notice of the hearing on appellant's petition for transfer was ever given to such district.

In reviewing the board's order of transfer, the court determined that, since the east one-half of section 29, township 123, above described, did not 'adjoin' original school district No. 3 or any of the lands transferred from said district No. 7 to school district No. 3 as required by § 122.15, the board had exceeded its jurisdiction in ordering this one-half section and the remaining lands of appellant transferred to the latter district.

Appellants contend that within the contemplation of § 122.15 the east one-half of section 29 does 'adjoin' territory comprising school district No. 3; that there was full compliance with the statutory requirements governing its transfer from district No. 7; and that the board of county commissioners had jurisdiction to order its transfer.

1. We believe the facts establish clearly that the board of county commissioners had jurisdiction to hear the petition for transfer and that its order directing the same was valid. Section 122.15 ¹ sets forth the procedure for such transfers. It specifies that any freeholder may present a petition to the board, setting forth his ownership of lands adjoining any school district, his desire that they be annexed thereto, and his reasons therefor; and it further provides that the board upon notice and hearing and proof may grant the petition. Where, as in the instant case the petition is presented prior to an election on consolidation, the act clearly states that approval of the newly consolidated district is not required, even though lands are to be detached therefrom by the order of transfer.

This latter provision seems particularly applicable here where at the time of posting, publication and mailing of notices of hearing, the order of reorganization of the superintendent required by § 122.52 had not yet been issued and the officers and clerk of the newly consolidated school district had not been elected. Obviously, there was no one at that time to whom notice might have been given. The statutory requirements for invocation of the board's jurisdiction having been complied with by December 22, 1952, events transpiring subsequent thereto, such as the issuance of the order of reorganization or the election of officers, would neither terminate such jurisdiction nor compel further process for its continuance.

2. We hold further that, within the...