Orrick School Dist. v. Dorton

• Decision Date: 18 December 1894
• Citation: 28 S.W. 765,125 Mo. 439
• Parties: ORRICK SCHOOL DIST. v. DORTON.
• Court: Missouri Supreme Court

28 S.W. 765

125 Mo. 439

ORRICK SCHOOL DIST. v. DORTON.

Supreme Court of Missouri, Division No. 2.

December 18, 1894.

CONDEMNATION OF LAND FOR SCHOOL — CORPORATE EXISTENCE OF SCHOOL DISTRICT.

1. In a proceeding by a school district to condemn land for school purposes, defendant may put plaintiff's corporate existence in issue.

2. Where, in a proceeding to condemn land for school purposes, plaintiff town's corporate existence as a school district is in issue, plaintiff must show that a plat of the town, together with the territory attached thereto for school purposes, has been filed with the county recorder, as required by Wagner's St. 1872, c. 123, art. 2, § 1, as a prerequisite to the formation of such town into an incorporated single school district.

3. Defendant is not estopped to deny plaintiff's corporate existence as a school district, to prevent a taking of his land for school purposes, by the fact that he has resided for several years in the district as organized, and paid school taxes, and in other ways recognized its existence as such.

4. Where land is sought to be condemned for public use without the owner's consent, a

strict compliance with every essential statutory requisite is necessary.

Appeal from circuit court, Ray county; E. J. Broaddus, Judge.

Proceeding by the Orrick School District against George M. Dorton to condemn land for school purposes. Judgment for plaintiff, and defendant appeals. Reversed.

Garner, Son & Divelbiss and Farris & Son, for appellant. J. E. Ball and J. R. Hamilton, for respondent.

BURGESS, J.

This is a proceeding by plaintiff, claiming to have been organized as a corporation under the school law applicable to cities, towns, and villages, to condemn for a new schoolhouse site, under section 8001, Rev. St. 1889, a strip of ground belonging to defendant, 210 feet wide by 420 feet deep, outside of the corporate limits of the town of Orrick, and outside of the platted portion thereof, but adjoining thereto. Upon filing the petition with the judge of the circuit court of that county (Ray), defendant filed an affidavit putting in issue the existence of plaintiff as a corporation. The judge, however, appointed commissioners to assess defendant's damages by reason of the taking and appropriation of his land, he and the plaintiff having been unable to agree with respect thereto, which said commissioners reported at the next succeeding term of the circuit court of said county, assessing damages to defendant in the sum of $600. Defendant subsequently and in due time filed his exceptions to said report, which were overruled, the report approved, and judgment rendered accordingly, from which he appealed. No deposit of the amount of damages awarded was made with the clerk of the circuit court, nor was possession of the land taken by plaintiff.

Defendant's first contention is that before plaintiff can maintain this action it must appear from the evidence that it was legally organized as a special school district. In Railway Co. v. Shambaugh, 106 Mo. 557, 17 S. W. 581, which was a proceeding to condemn the defendant's land for its right of way, it was held that its corporate existence might be put in issue, for, if the plaintiff had no corporate capacity, it had no right to prosecute the suit. City of Hopkins v. Kansas City, St. J. & C. B. R. Co., 79 Mo. 100, was a proceeding begun by plaintiff for the purpose of opening a street in the town of Hopkins, through the depot grounds of defendant, and it was held that the fact of plaintiff's incorporation rested in pais, and must be proven as any other fact. The rule seems to be different in some of the other...