Schilling v. Carl Tp.

• Decision Date: 27 February 1931
• Docket Number: No. 5807.,5807.
• Parties: SCHILLING v. CARL TP., GRANT COUNTY.
• Court: North Dakota Supreme Court

60 N.D. 480

235 N.W. 126

SCHILLING

v.CARL TP., GRANT COUNTY.

No. 5807.

Supreme Court of North Dakota.

Jan. 5, 1931.

Rehearing Denied Feb. 27, 1931.

Syllabus by the Court.

In this case a township claims to have secured the right of way for a public road by proper condemnation proceedings, and to have paid compensation therefor. Such township seeking to obtain private property for road purposes is acting within powers conferred upon it by statute and therefore, when the township officers, acting as such officers, take possession of such land, but do it in an improper manner, the action of the officers is the action of the township, and the owner of the land may sue the township and recover compensation for the land taken.

Syllabus by the Court.

Such a township, in taking land for road purposes, is acting as an instrumentality of the state in the exercise of eminent domain, and though it may proceed irregularly in said matter, it cannot be said to be a trespasser or a tort-feasor.

Syllabus by the Court.

Under the provisions of section 14 of the state Constitution, private property cannot “be taken or damaged for public use without just compensation having been first made to or paid into court for the owner,” and where such township, seeking to take private property for road purposes, proceeds with the work without compliance with the requirements of law and without the consent of the owner, it cannot invoke the statute of limitations against an action for “just compensation” until title has been acquired legally.

Syllabus by the Court.

Where the owner permits the township to take his land by irregular means, he does not thereby waive his right to just compensation.

Syllabus by the Court.

In such case the owner of the land may waive the strict compliance with the statutory requirements and may consider the land as if it were being condemned properly, and thereafter bring action for his damages or compensation, within the time prescribed by the statute of limitations.

Syllabus by the Court.

An action for such compensation is not “an action for trespass upon real property,” required to be brought within six years under the provisions of subdivision 3 of section 7375, Comp. Laws 1913; but is considered a substitution for the statutory provisions prescribing how the township shall ascertain and estimate compensation for the injury done the owner because of the road; and until title is obtained by the township, either through the exercise of eminent domain, the consent of the owner, or by adverse user and prescription, the owner may bring such action.

Syllabus by the Court.

The record examined, and it is held, that although the court may not have accurately instructed the jury in regard to every phase of the case covering the ascertainment of compensation, yet, in view of the evidence introduced and the issues involved, and the verdict returned, such inaccuracies could not have misled the jury, and therefore a new trial will not be granted on this ground.

Syllabus by the Court.

In this case it is held the judgment should be modified to show that just compensation to the owner has been ascertained and that upon payment of the judgment into court for the owner title to the road is vested in the township.

Appeal from District Court, Grant County; F. T. Lembke, Judge.

Action by Albert Schilling against Carl Township, a political subdivision of Grant County. Judgment for plaintiff, and defendant appeals.

Affirmed, subject to directions for modification.

Jacobsen & Murray, of Mott, for appellant.

C. Liebert Crum, of Carson, for respondent.

BURR, J.

The plaintiff brought action against the township to recover compensation for private property taken and damaged in the laying out of a road. The facts necessary to a proper understanding of the case will be stated later. The jury returned a verdict for the plaintiff in the sum of $400, and from the judgment entered thereunder the defendant appeals.

There are nineteen specifications of error which, with various subdivisions, present some thirty-two propositions; but, as stated by the appellant himself:

“Appellant's contentions when boiled down resolve themselves into the following major propositions:

1. That the defendant as a matter of law is not liable for the cause of action set out in the complaint, or the cause of action testified to by the witnesses and shown by the testimony.

2. That the road was on the land when the plaintiff purchased same; that the only one who sustained any damages, if any, was the original owner of the land, namely, the owner at the time such road was constructed; that such owner has never assigned its or his cause of action for same to the assignors who assigned to the plaintiff.

3. That the defendant's officers did not commit the trespass; that if anyone committed a trespass it was the board of county commissioners of Grant County.

4. That the alleged cause of action is barred by the statute of limitations.

5. That there is no competent evidence establishing any damages under the pleadings.

6. No verified claim presented to the board.

7. Reversible error in the court's ruling on the testimony and the defendant's motions, and in the court's instructions.”

The complaint alleges that:

“The said defendant ------ did wrongfully and unlawfully ------ and as naked trespassers, enter upon the said above described real estate and did take possession of a strip of said land 66 feet in width and extending direct from the quarter corner of the south line of said section to the quarter corner of the north line of said section, and did assume to establish a public highway across the center of the tillable land of said section ------ and did grade a public highway entirely across said section; ------ that he has been and will be put to a great inconvenience ------ that the road or highway actually occupies eight acres of said tillable land and forms a barrier between the east and west portions of said section. That by reason of the building of said road as aforesaid, it will be necessary for the plaintiff to build and maintain two miles of fence, etc.; that he presented to the defendant a duly certified claim in the sum of $800.00 covering said damage.”

He says further that he was not the owner of the land at the time the road was established, but that the then owner assigned to him the interest which he had in the cause of action, and that he now owns “the entire cause of action stated.”

The answer contains a general denial and then alleges:

“That on or about the month of May, 1921, the defendant, pursuant to statute in said case made and provided, duly and legally condemned and laid out as a public highway along the quarter section line in the section designated in paragraph three of the complaint; that said proceedings were all due, legal and regular and in compliance with the statute, and that pursuant thereto damages were then and there paid by the township to the defendant owner and possessor of said land, which were accepted by said owner, and possessor in full settlement thereof.”

The answer further alleges that:

“The plaintiff granted and conveyed to the defendant the right to establish a highway as aforementioned and that said highway was placed on said land in accordance with specific instructions and request of the then owner of said land and that the then owner of said land waived all claims for damages thereto by reason of such road.”

There are allegations of the claim being barred by the statute of limitations and that the township is not subject to suit.

Whatever criticism may be leveled at some of the terms used in the complaint, it is clear the action is not one for closing a road, nor enjoining the use; but for compensation for private property taken and for private property damaged by the township in its attempt to open and maintain a road. The complaint asks merely for a money judgment for an amount specified, with costs, though plaintiff does include in his prayer a request for “all further necessary proper relief. The township rests its case distinctly on its power to condemn land for road purposes, and its alleged compliance with the law regulatory thereof.

The pleadings dispose of any issue as to the laying out of the road by the township, and these allegations are amply sustained by whatever testimony was introduced. The record shows the road is a township road-the defendant so alleges-though the county graded and furnished assistance in the maintenance. There is no proof whatever of the completion of condemnation proceedings by the township; in fact, the proof establishes the contrary, and defendant abandoned this claim. William Jessum, a member of the township board of 1921, testified that no money was paid any one for that road, while he was on the board, and he knew of no conveyance or easement given, and would have known if there had been any. The record shows the township board was anxious to have a mail route established and owing to the topography of the country found it more convenient to run the road through the section than to follow the section lines. Thus it is clear the township took the property, keeps and maintains a road thereon; but has not paid compensation therefor.

The plaintiff did not become the owner until after the road was established. There was some attempt made by the defendant to show that at the time work was commenced on the road the township made settlement with the then owner of the land; but as this testimony was based upon statements made by an alleged agent with no proof of agency and proper objection was made it has no probative value. The case arises from the act of the township in establishing a road through the land which plaintiff now owns, without paying compensation, and in keeping and maintaining that road thereon. The plaintiff rests his case upon his right to consider the road as established and to recover compensation for the property taken and the property damaged.

[1] Appellant...