Satrom v. City of Grand Forks
| Decision Date | 10 May 1967 |
| Docket Number | No. 8393,8393 |
| Citation | 150 N.W.2d 700 |
| Parties | G. E. SATROM and A. W. Stokes, Plaintiffs and Respondents, v. The CITY OF GRAND FORKS, a Municipal Corporation, Defendant and Appellant, and The County of Grand Forks, a Public Corporation, Defendant. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The governing body of a city, by a resolution passed by a two-thirds vote of its members, may extend the boundaries of the city to increase the territory within the corporate limits by not more than one-fourth of its area. The resolution shall describe particularly the land proposed to be incorporated within the city limits, setting forth the boundaries thereof and describing the land platted by blocks and lots. § 40--51--07, N.D.C.C.
2. The purpose of the requirement in § 40--51--07, N.D.C.C., that a resolution describe particularly the land proposed to be incorporated within the city limits, that boundaries be set forth, and that platted land be described by blocks and lots, is that notice be given so that whosoever may be affected by the proposed action may object if he desires to do so. That purpose was satisfied in a resolution which referred to the block, addition, township, county, and state, when the property had been previously platted and the plat had been filed and recorded in the office of the register of deeds of the county in which the land was situated.
3. As no protest was made pursuant to the provisions of § 40--51--08, N.D.C.C., to the annexation of property to the city, it is immaterial that the land sought to be annexed may have been used exclusively for farming purposes.
4. When an appeal is taken by the state or governmental subdivision thereof or an officer or agency thereof or by direction of any department thereof and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant. Rule 62(e), N.D.R.Civ.P. This rule is construed to eliminate the necessity of a cost bond on an appeal from a judgment to the Supreme Court by a municipal corporation when the enforcement of the judgment has been stayed.
5. As a city and a county are separate entities, the failure on the part of the county to appeal from an adverse judgment does not affect the city's right to appeal.
Gordon Caldis, Grand Forks, for appellant.
A. W. Stokes, Grand Forks, for respondents.
In this case the City of Grand Forks appeals from the judgment entered on the findings of fact, conclusions of law, and order for judgment of the District Court of Grand Forks County.
The judgment decreed that the annexation proceedings brought by the City of Grand Forks in 1963, attempting to annex Lots 1 to 18, inclusive, of Block 2 of Sunset Acres 3rd Addition to the city of Grand Forks, be set aside as null and void. It further decreed that general taxes and special assessments, levied against the said premises by the City of Grand Forks and certified to the County of Grand Forks for collection, be set aside as null and void.
An examination of the trial court's memorandum discloses that it sustained the plaintiffs, Mr. Satrom and Mr. Stokes, in their action to have the annexation affecting their property set aside on the ground that the description of the property to be annexed, as contained in the City's resolution extending the boundaries of the city, failed to comply with the requirements of § 40--51--07, N.D.C.C.
The pertinent parts of that section read as follows:
40--51--07. Inclusion of territory within city limits by resolution initiated by governing body * * *--The governing body of a city, by a resolution passed by a two-thirds vote of its members, may extend the boundaries of the city to increase the territory within the corporate limits by not more than one-fourth of its area. * * * The resolution shall describe particularly the land proposed to be incorporated with the city limits, setting forth the boundaries thereof and describing the land platted by blocks and lots, * * *.
The description of the property as contained in the resolution reads as follows:
Lots A, B, C, D, E, F, G and H, Block 1, and all of Block 2, Sunset Acres 3rd Addition, together with the full width of all platted streets contiguous thereto, Grand Forks Township, Grand Forks County, State of North Dakota.
A review of the transcript of the trial court proceedings indicates that Mr. Satrom and Mr. Stokes purchased Lots 1 to 18, inclusive, in Block 2 and Lots 2 to 16, inclusive, in Block 3 of Sunset Acres 3rd Addition at Grand Forks for approximately $20,000, and that the entire tract of land purchased consisted of approximately 6 acres. During the trial of this matter it was urged by Messrs. Satrom and Stokes, and apparently concurred in by the trial court, that the decision of Weeks v. Hetland, rendered by this court in 1925, compelled the conclusion that the resolution was defective.
They point out that the word And, as distinguished from the word Or, is used in the requirement that the boundaries be set out and that platted land be described by blocks and lots.
It is significant that in Weeks this court did not require a description both by metes and bounds and by blocks and lots.
In Weeks the resolution set forth the boundaries by metes and bounds and referred to the plats of the land on file and of record in the office of the register of deeds. In sustaining the resolution the Court said:
* * * It is the plain purpose of the statute that notice be given so that whosoever may be affected by the proposed action may object, if he desires to do so. * * *
Weeks v. Hetland, 52 N.D. 351, 202 N.W. 807, 812.
We believe the purpose of the statute has been effected in the instant case by the description of the property by lots and blocks. This is more readily appreciable when a description of Sunset Acres 3rd Addition (a part of which was the subject of annexation) by metes and bounds is compared with a description of the same property by lots and blocks.
Messrs. Satrom and Stokes argue that § 40--51--07 requires that the boundaries of the property be set out by metes and bounds. Nowhere in the statute are the words Metes and bounds contained. Our view is that the resolution's reference to the block, addition, township, county, and state gave ample notice to the plaintiffs of the property sought to be annexed and its boundaries, the property having been previously platted and the plat having been filed and recorded in the office of the Register of Deeds of Grand Forks County.
To construe the statute as Messrs. Satrom and Stokes would have us do would defeat its obvious purpose. This we will not do, even in the guise of applying the rule that because a city is a creature of statute, all statutes conferring power on a city must be strictly construed.
As the resolution complied with the statute and there is no contention that proper publication was not made, the land became a part of the city ten days after the last publication of the resolution unless protest was made pursuant to § 40--51--08. The record discloses that no such protest was made, and thus no point can now be raised that the plaintiff's land was used exclusively for farming or pasturage purposes. In any event, such an argument would be immaterial unless it were shown that the greater portion of the entire territory proposed to be annexed consisted of lands used exclusively for farming or pasturage purposes. That this is the view adopted previously by this court is shown by City of Fargo v. Annexation Review Commission, 123 N.W.2d 281 (N.D.1963).
Messrs. Satrom and Stokes argue that we must dismiss this appeal for other reasons. They contend that it must be dismissed because the City failed to serve or file a cost bond as provided by §§ 28--27--05 and 28--27--09.
28--27--05. How appeal taken.--An appeal must be taken by serving a notice in writing signed by the appellant or his attorney on the adverse party and filing the same in the office of the clerk of the court in which the judgment or order appealed from is entered, stating the appeal from the same, and whether the appeal is from the whole or a part thereof, and if from a part only, specifying the part appealed from. The appeal shall be deemed taken by the service of a notice of the appeal and perfected on service of the undertaking for costs, or the deposit of money instead, or the waiver thereof as in this chapter prescribed. When service of a notice of appeal and undertaking cannot in any case be made within this state, the court may prescribe a mode for serving the same.
28--27--09. Appeal ineffectual without undertaking.--To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal not exceeding two hundred fifty dollars.
Before the adoption of the Century Code the Revised Code of 1943 contained the following section:
28--2719. From Whom Undertaking Not Required Unless Ordered by Court. When the state, or any state officer, or state board, in a purely official capacity, or any municipal corporation within the state, shall take an appeal, service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from and no undertaking need be given, but the supreme court on motion may require sureties to be given in such form and manner as it shall prescribe as a condition of the further prosecution of the appeal.
North Dakota Revised Code of 1943.
In a decision rendered in 1956 this court construed that section to eliminate the necessity of a cost bond on an appeal taken by the Attorney General in his official capacity as attorney for the Unsatisfied Judgment Fund. King v. Menz, 75 N.W.2d 516, 518 (N.D.1956)...
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