Kirkwood v. School Dist. No. 7 in Summit County

• Citation: 101 P. 343,45 Colo. 368
• Parties: KIRKWOOD v. SCHOOL DIST. NO. 7 IN SUMMIT COUNTY.
• Decision Date: 05 April 1909
• Court: Supreme Court of Colorado

101 P. 343

45 Colo. 368

KIRKWOOD v. SCHOOL DIST. NO. 7 IN SUMMIT COUNTY.

Supreme Court of Colorado

April 5, 1909

Appeal from Summit County Court; J. W. Swisher, Judge.

Condemnation proceedings by School District No. 7 in the County of Summit state of Colorado, against Thomas Kirkwood. From a judgment for petitioner, respondent appeals. Affirmed.

H. C Clay, for appellant.

F. M Toddard, for appellee.

GABBERT J.

Appellee, as petitioner, instituted proceedings in the court below against appellant as respondent to condemn certain land of the latter for a schoolhouse site. From a judgment in favor of petitioner, and awarding damages to the respondent for the land taken, the latter brings the case here for review on appeal.

The first point urged by his counsel is that the petition does not state facts from which it appears the petitioner was entitled to institute and maintain the proceedings in condemnation. In support of this contention it is stated that it does not appear from the petition to which class district No. 7 belongs, and that it is not alleged that the board of the district had been empowered, by vote of the electors thereof, to purchase a school lot, or that the electors of the district had selected as a school site the land sought to be condemned, as provided in subdivision 5, § 4015, and subdivision 3, § 4027, Mills' Ann. St. It is therefore argued that the petition does not show that the necessary antecedent steps were taken in order to authorize the petitioner to exercise the power of eminent domain. The respondent cannot urge this question. Without objection evidence was introduced on behalf of the petitioner by which it was established that the electors of the district, at a meeting held prior to the time when the condemnation proceedings were instituted, directed that the premises in question should be condemned as a schoolhouse site. Respondent did not attack the sufficiency of the petition in the trial court. An objection made for the first time on appeal is viewed with disfavor. A party will not be permitted to allow a case to be prosecuted to judgment, and then, when defeated, bring it here on appeal, and for the first time, where evidence has been admitted without objection on an issue which it is claimed was not embraced in the pleading of his adversary, attack it on the ground that it is insufficient with respect to such issue. A defeated party cannot thus silently reserve objections to a pleading, and afterwards raise them for the first time on appeal. Having, in the manner we have indicated, once treated the pleading as sufficient with respect to facts on which evidence was introduced without objection, he cannot thereafter question it. Edward Malley Co. v. Londoner, 41 Colo. 436, 93 P. 488; Nix v. Miller, 26 Colo. 203, 57 P. 1084.

At the request of the respondent commissioners were appointed for the purpose of ascertaining the necessity for taking the land sought to be condemned. Two of the commissioners reported that it was necessary; the third, that it was not. The majority report was approved by the court, and error is assigned on this action. Whether or not the report of a majority of the commissioners was sufficient is not involved. School districts are empowered to take and hold so much real estate as may be necessary for the location and construction of a schoolhouse and convenient use of the school, not in excess of one acre. Section 4013, Mills' Ann. St. The question of the location of a school site, and the necessity of taking land therefor, not in excess of one acre, is vested entirely in the school authorities of a district, and the necessities of the district in this respect are not questions for a commission or jury to determine. Warner v. Town of Gunnison, 2...