Mountrail County v. Wilson
| Decision Date | 07 March 1914 |
| Docket Number | 81912 |
| Citation | 146 N.W. 531,27 N.D. 277 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Mountrail County, Frank Fisk, J.
Reversed.
Defendant Wilson recovered costs and disbursements.
F. F Wyckoff, State's Attorney, and Henry J. Linde, for appellant.
By virtue of the deed from Wilson, Mountrail County acquired title to and possession and control of the property therein described. The estate conveyed was not one on condition. 2 Washb. Real Prop. p. 3, § 2; Garfield Twp. v Herman, 66 Kan. 256, 71 P. 517; Curtis v. Board of Education, 43 Kan. 138, 23 P. 98.
A deed absolute, but specifying the purpose for which the property conveyed shall be used, does not create an estate upon condition subsequent. Soukup v. Topka, 54 Minn. 66 55 N.W. 824; Faith v. Bowles, 86 Md. 13, 63 Am. St. Rep. 489, 37 A. 711; Farnham v. Thompson, 34 Minn. 330, 57 Am. Rep. 59, 26 N.W. 9; Wier v. Simmons, 55 Wis. 637, 13 N.W. 873; Portland v. Terwilliger, 16 Ore. 465, 19 P. 90; Ecroyd v. Coggeshall, 21 R. I. 1, 79 Am. St. Rep. 741, 41 A. 260; Kilpatrick v. Baltimore, 81 Md. 179, 27 L.R.A. 643, 48 Am. St. Rep. 509, 31 A. 805; Huron v. Wilcox, 17 S.D. 625, 106 Am. St. Rep. 788, 98 N.W. 88; Greene v. O'Connor, 18 R. I. 56, 19 L.R.A. 262, 25 A. 692; Downen v. Rayburn, 214 Ill. 342, 73 N.E. 364, 3 Ann. Cas. 36; Warren County v. Patterson, 56 Ill. 111.
Since the Wilson tract was deeded to the county for public purposes, it is contended that the county has no power to sell or dispose of such land. Such is not the law. Rev. Codes 1905, § 2377; Colburn v. El Paso County, 15 Colo.App. 90, 61 P. 241; Kendall v. Frey, 74 Wis. 26, 17 Am. St. Rep. 118, 42 N.W. 466.
How and where a public building shall be erected is necessarily a question of public policy. Courts cannot wisely review the action of the public authorities on such subject. Judd v. Fox Lake, 28 Wis. 587; Crow v. Warren County, 118 Ind. 51, 20 N.E. 642; Way v. Fox, 109 Iowa 340, 80 N.W. 405; Mahon v. Norton, 175 Pa. 279, 34 A. 660; Bennett v. Norton, 7 Kulp, 443; State ex rel. Norman v. Smith, 46 Mo. 60; Simpson v. Bailey, 3 Ore. 515; 11 Cyc. 380; Lawrence County v. Hall, 70 Ind. 469; 1 Dill. Mun. Corp. 3d ed. 38; Kokomo v. Mahan, 100 Ind. 242; Bosley v. Ackelmire, 39 Ind. 536; Platter v. Elkhart County, 103 Ind. 360, 2 N.E. 544.
Greenleaf, Bradford, & Nash, for respondents.
The county accepted the lands as and for a courthouse site, and such was the intention of all parties. Stafford County v. State, 40 Kan. 21, 18 P. 889.
In the absence of statutory authority, a board of county commissioners cannot review or reverse acts of a prior board, performed within the scope of their authority. Stenberg v. State, 48 Neb. 299, 67 N.W. 190; Rev. Codes 1905, §§ 2377, 2399.
Repeals by implication are, in any event, not favored. State ex rel. State Farmers' Mut. Hail Ins. Co. v. Cooper, 18 N.D. 583, 120 N.W. 878.
The question of a site for courthouse and county buildings should be submitted to the voters. Rev. Codes 1905, § 2399; Waring v. Cheraw & D. R. Co. 16 S.C. 416; Creighton v. Pringle, 3 S.C. 79.
The defendants, having been brought into court, are entitled to raise any question by way of defense; they have rights as taxpayers. 11 Cyc. 405; McCann v. Carlson, 26 N.D. 191, 144 N.W. 92.
Points here raised by appellant, not having been raised and presented in the trial court, cannot be considered. McLain v. Nurnberg, 16 N.D. 144, 112 N.W. 243; Van Gordon v. Goldamer, 16 N.D. 323, 113 N.W. 609; Poirier Mfg. Co. v. Kitts, 18 N.D. 556, 120 N.W. 558.
The judgment of the county board is final and conclusive on the question of the necessity or acquiring additional ground for the use of county buildings. Rev. Codes 1905, §§ 2406, 2566; Grafton v. St. Paul, M. & M. R. Co. 16 N.D. 313, 22 L.R.A.(N.S.) 1, 113 N.W. 598, 15 Ann. Cas. 10.
The county board may locate the county buildings on any one particular piece of ground obtained for such purpose, even though other tracts have been acquired. Rev. Codes 1905, § 2399; James v. Gettinger, 123 Iowa 199, 98 N.W. 723; Vance v. District Twp. 23 Iowa 408; Atkinson v. Hutchinson, 68 Iowa 162, 26 N.W. 54; Carpenter v. Independent Dist. 95 Iowa 300, 63 N.W. 708.
The official acts of a board of county commissioners cannot be attacked in a collateral proceeding by a defendant, or in a direct action in his individual capacity, unless his beneficial interest therein, as a taxpayer or otherwise, is alleged and proved. Rev. Codes 1905, §§ 2423, 7810; Cleveland v. McCanna, 7 N.D. 457, 41 L.R.A. 852, 66 Am. St. Rep. 670, 75 N.W. 908; San Luis Obispo County v. Simas, 1 Cal.App. 175, 81 P. 974; Waugh v. Chauncey, 13 Cal. 11; Norris v. Farmers' & Teamsters' Co. 6 Cal. 599, 65 Am. Dec. 535; Fall v. Paine, 23 Cal. 302; Sherman v. Bellows, 24 Ore. 553, 34 P. 549; Ruthstrom v. Peterson, 72 Kan. 679, 83 P. 825; Culpeper County v. Gorrell, 20 Gratt. 484; Bryant v. Logan, 56 W.Va. 141, 49 S.E. 21, 3 Ann. Cas. 1011; McCann v. Carlson, 26 N.D. 191, 144 N.W. 92.
This action is one for condemnation of land for public use. The complaint is in the usual form, alleging that the present and designated courthouse site is owned in fee simple by Mountrail county. That "it is necessary for plaintiff to acquire title to another tract of land, adjoining the land described on the west, in order to have sufficient ground for said courthouse and jail and such other necessary county buildings as may be constructed by the plaintiff in the future for the use of the county; that the land described in P 3 (the established site) alone is insufficient for the needs of the plaintiff in the construction of said courthouse and jail and other buildings, and that in order to have such a site for the construction of such buildings as will meet with the present and future needs and requirements of the plaintiff, the plaintiff will require and does now require the acquisition of title to that certain tract of land described in P 2." The tract sought to be appropriated is about one half of a block, described by metes and bounds, and belonging to defendant Wilson. Plaintiff seeks to have the necessity for the taking, together with the value of the property to be taken, determined. The defendants admit their ownership of the tract in question, and deny the ownership by the county of the site designated. Further defense is made that at the general election in 1912 there was submitted to the voters of the county the question of bonding in the sum of $ 50,000 for the purpose of constructing a courthouse for said county, which question carried and bonds so authorized were sold, but that said proposition so submitted did not include authorization for the construction of a jail for said county, or the procuring of a site on which to build and construct a county courthouse and jail.
Defendants aver that prior to said election and for some years the county was and now is the owner in fee simple of a tract of land particularly described. "That the board of county commissioners of the plaintiff selected and procured the above-described land and premises to be used as a site upon which to build and construct a county courthouse and other necessary county buildings for the use of said county aforesaid." This tract is a different tract at said county seat than the one officially designated by the present board of county commissioners as the courthouse site and upon which the erection of a courthouse has been begun. Defendants allege also that the resolution of the board of county commissioners, dated September 23, 1913, designating that the courthouse shall be built upon the newly acquired site and the contract and agreement for the purchase thereof, was then and is now fraudulent and void as were all acts and proceedings of the present county board in procuring and designating the present site upon which the courthouse is being built.
The proof offered was embodied by the court in its findings, from the judgment upon which the appeal is taken, with the facts thus admitted. The court found that the city of Stanley was selected by a majority vote of the people of the county at the November, 1910, election as the county seat, which vote was canvassed and the result declared November 22, 1910. That during that county-seat election defendant Wilson had offered to the county and its electors that if the city of Stanley was chosen as the permanent county seat that he would convey to the county a half block of land in said city. That a deed to said tract was prepared October 25, 1910, and delivery thereof to the county commissioners was made after the result of said election was generally known, and was placed of record November 10, 1910, the county paying as a formal consideration the sum of $ 1, paid by warrant duly audited and allowed, received and cashed by Wilson on November 11 1910. Said deed was in the usual form of deed of warranty, conveying the land particularly described "to be used for courthouse and other necessary county buildings, and that only." No clause is contained in the deed that the lands on breach of condition should revert back to the grantor. So that at the 1910 general election the permanent county seat was established at the city of Stanley and immediately the county became vested with title to a half block of land deeded to and received by it "to be used for courthouse and other necessary county buildings and that only." A county jail had been erected on this site in the summer of 1909, by the county commissioners, and prior to the acquisition of title by the county the following year. This building has been used as a county jail ever...
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