Petersburg Sch. Dist. of Nelson Cnty. v. Peterson

• Decision Date: 09 June 1905
• Citation: 103 N.W. 756,14 N.D. 344
• Parties: PETERSBURG SCHOOL DIST. OF NELSON COUNTY v. PETERSON.
• Court: North Dakota Supreme Court

14 N.D. 344

103 N.W. 756

PETERSBURG SCHOOL DIST. OF NELSON COUNTY

v.PETERSON.

Supreme Court of North Dakota.

June 9, 1905.

Syllabus by the Court.

1. A landowner who resists the taking of his land for public purposes upon a failure to agree upon the value thereof, and recovers judgment therefor, is entitled to recover his taxable costs in the action.

2. Under section 14 of the Constitution, prohibiting the taking or damaging of private property for public use without just compensation being first made or paid into court for the owner, it would be partially nullifying such provision if the compensation awarded him be diminished by his being compelled to pay the taxable costs.

3. Under section 701, Rev. Codes 1899, providing that the board may call a meeting of the voters in a school district to select a site for a new schoolhouse, a selection of a site by such voters, describing the site, “For locating a new schoolhouse on the hill at the south end of Sixth street, in Peterson's field,” is sufficiently definite on which to base a definite location of the site by the board.

4. Under said section 701, Rev. Codes 1899, the voters are required only to select by a general designation, and not by definite description.

5. Under said section 701, Rev. Codes 1899, the board is required to locate the site upon the land selected by general designation of the voters by fixing its boundaries, and it is vested with discretion as to the precise limits of the site selected by the voters, as well as to the amount of land taken, within the statutory limit.

6. In condemnation proceedings based on the right to acquire land for public purposes under the power of eminent domain, if a statute confers such power, it will be liberally and reasonably construed, so as to make its purpose effective.

7. The calling of a witness by a plaintiff in rebuttal who gives testimony that pertains to his main case is not necessarily prejudicial, but is a matter resting largely in the discretion of the trial court.

8. Instructions on the question of what facts may be considered by the jury in determining the value of the property involved considered, and held not erroneous.

Appeal from District Court, Nelson County; Charles J. Fisk, Judge.

Proceedings by the Petersburg school district of Nelson county against Levi H. Peterson to condemn land. Judgment for plaintiff, and defendant appeals. Modified.

Guy C. H. Corliss, for appellant. Fred A. Kelly and Scott Rex, for respondent.

MORGAN, C. J.

The defendant appeals from a judgment adjudging that certain described lands belonging to him be condemned as a schoolhouse site upon payment of damages to him assessed by the jury at the sum of $300. The school board deemed it necessary to provide proper school privileges for the district, and thereupon called a meeting of the voters of the district to vote upon the selection and purchase of a site for a schoolhouse, as provided by section 701, Rev. Codes 1899. At such meeting a majority of the votes cast was in favor of a site described as follows: “For locating a new schoolhouse on the hill at the south end of Sixth street, in Peterson's field.” After the special meeting or election was held, the school board met, and adopted the following resolution: “Resolved, that the boundaries of the site for the new schoolhouse on the location adopted at special election held May 21st, 1904, be fixed as follows.” The precise description of the site by metes and bounds is then given, and embraces a tract comprising two acres-included in it, the hill in Peterson's field, at the south end of Sixth street. After definitely locating the site the board interviewed defendant as to the purchase of that site, but there was a failure to agree upon the price. The board thereupon ordered that condemnation proceedings be instituted for the purpose of acquiring that site under the power of eminent domain. This action was thereupon regularly instituted for that purpose, and, in answer to a complaint setting forth a cause of action against him, the defendant answered, setting forth facts that pertained only to the value of the land to be condemned. A jury was impaneled, but no question was submitted to it, except the one as to the value of the two acres sought to be condemned as a site for a schoolhouse. The jury found the value of the land to be $300. The defendant appeals from the judgment adjudging that this land be condemned as prayed for upon payment of that sum to the defendant.

There are thirteen assignments of error in the record, but all of them are abandoned in the argument, except four, which we will consider in the order that they are presented in the brief filed:

The appellant contends that the voters of the school district did not select a site for the schoolhouse as required by section 701, Rev. Codes 1899. The contention is that the voters did not particularly specify or describe the site desired-in other words, that the designation, “For locating a new schoolhouse on the hill at the south end of Sixth street, in Peterson's field,” is too indefinite, and therefore insufficient on which to base condemnation proceedings. Section 701, Rev. Codes 1899, provides that “whenever in the judgment of the board it is desirable or necessary to the welfare of the schools in the district or to provide for the children therein proper school facilities, * * * the board shall call a meeting of the voters in the district * * * to vote upon the question of the selection, purchase, exchange or sale of a school house site. * * * Said election shall be conducted and votes canvassed in the same manner as at the annual election of school officers. * * * If a majority of the voters present at such meeting shall by vote select a school house site * * * the board shall locate, purchase, exchange or sell such site * * * in accordance with such vote.” Section 702 provides, among other things, that, “should the owner of such real property refuse or neglect to grant and convey such site, a site for such school house may be obtained by proceedings in eminent domain as provided in the Code of Civil Procedure.” Section 703 provides that if upon the organization of a school district in cases therein particularly described, “and if no suitable room for such school can be leased or rented the board shall call a meeting of the voters of the district for the selection and purchase of a school house site therefor, and the purchase or erection of a school house as provided by section 701. If at such meeting no such site is selected, * * * the board shall select and purchase a school house site, and erect, purchase or move thereon a school house,” etc. Under these provisions it seems clear to us that the voters are not required to select a site except by general designation. Under section 701 it is evident that the site to be selected by the voters and the site to be thereafter located by the board are not necessarily to be described by the same language. To select is to pick out or choose. It signifies a choice of one out of more than one. To locate is to select by fixed boundaries. The word “site” does not of itself necessarily mean a place or tract of land fixed by definite boundaries. All that section 701 contemplates is that the voters shall select the site in a way that the board can determine what place has been chosen. That having been done, its definite location is to be made by the board. It is significant that the word “locate” is not used in the section in reference to the act of voting for a site by the voters, but is used in reference to the action of the board thereafter in carrying out the wishes of the voters. The statute should receive a reasonable construction. To construe it that the voter must precisely describe the tract would render its provisions difficult to be carried out. It would require each voter to provide himself with a technical description, which could not be done, in many cases, without the services of a surveyor. Such a construction of the law would make it impracticable. The language used excludes such a construction when all its provisions are considered together. Appellant contends that the section must be strictly construed, as it pertains to the power of eminent domain. We cannot concede the contention to be true in all respects. When the question to be determined is whether a statute confers the power to exercise the right of eminent domain, then the statute must be strictly construed. But strict construction cannot be invoked in the matter of carrying out the provisions of a statute that plainly confers the power of eminent domain. The rule is well stated in section 255, Lewis on Eminent Domain (2d Ed.), as follows: “In determining whether statutes confer the right to exercise the power of eminent domain, the rules of strict construction are to be applied. But when the power has undoubtedly been conferred, then, in so far as it attempts to define the location or...