173 Iowa 43 | Iowa | 1915
Lead Opinion
*45 ‘1 In the case of non-nser for school purposes for two years continuously of any real estate acquired for a schoolhouse site it shall revert,, with improvements thereon, to the owner of the tract from which it was taken, upon repayment of the purchase price without interest, together with the value of the improvements, to be determined by arbitration, but during its use the owner of the right of reversion shall have no interest in or control over the premises.”'
- In view of this statute, we shall have no need to consider the effect of the proviso in the original deed.
The defense rests upon two general propositions:
(1) It is argued that the closing of the school was with the consent and by the order of the county superintendent, and that this was equivalent to using the property for school purposes. There is a statutory provision which authorized the county superintendent to permit a district to hold school for a lesser number of weeks a year than the statutory requisite. We know of no provision which authorizes the county superintendent to permit a school district to hold no school whatever. We think, therefore, that the order of the county superintendent furnishes no aid to the defendant.
(2) It is further urged that the forfeiture provisions of the statute must be strictly construed, and that no greater relief should be awarded to the plaintiff than the strict terms of the statutory requirement. This contention may be conceded: The decree of the district court presents no infringement upon this rule. We are unable to see any possible construction of the statute in question, which will save this property to the defendant. There was a non-user for more than two years, beyond all question. The statute itself is supported by reasons of sound public policy. Unused school grounds and buildings present a degree of menace to the neighboring property. As might well be expected in such a case, this property was abandoned to tall weeds. The house coiild not be or was not kept locked. It was frequently oe.cupied by tramps and quasi tramps. Danger of fire was
We think the fihding- of forfeiture is unavoidable, and the decree entered below is therefore — Affirmed.
Rehearing
Supplement Opinion on Rehearing.
“Provided, however, if said land ever ceases to be used exclusively for schoolhouse lot, it shall revert back and title shall thereupon be vested in said Wm. Flickinger, his heirs or assigns, the same as if this deed and sale had not been made. ”
It is strenuously urged in the petition for rehearing that the provisions of the statute were superseded by the voluntary conveyance of the grantor to the district, and that the rights of the parties should be determined under the provisions of such deed, and not under the statute. This proposition is plausible upon its face and is entitled to consideration in the opinion.
The argument for the appellant on this feature of the case is that Sec. 2816 has no application to a voluntary conveyance of property, but only to eases where property has
The power, authority and method of acquiring schoolhouse sites by school districts are set forth in Code Secs. 2814, 2815 and 2816. These sections were in force in 1877, when the defendant acquired its schoolhouse site. By a perusal of these sections, it will be seen that the distinction between a voluntary conveyance by deed and an involuntary conveyance by' condemnation, which is urged by appellant, does not obtain in the contemplation of this statute. These sections (omitting matters not necessary for our present consideration) are as follows:
‘ ‘ Sec. 2814. Any school corporation may take and hold so much real estate as may be required for schoolhouse sites, for the location or construction thereon of sehoolhouses and the convenient use thereof, but not to exceed one acre, except in a city or incorporated town it may include one block exclusive of the street or highway, as the case may be, for any one site, unless by the owner’s consent, which site must be upon some public road already established or procured by the ■board of directors, and shall, except in cities, incorporated towns or villages, be at least forty rods from the. residence of any owner who objects to its being placed nearer, and not in any orchard, garden or public park.”
“Sec. 2815. If the owner of the real estate desired for a schoolhouse site, or a public road thereto, refuses or neglects to convey the same, or is unknown or cannot be found, the county superintendent of the proper county, upon the application. of either party in interest, shall appoint three disinterested referees .. .”
“Sec. 2816. In the case of non-user for school purposes for two years continuously of any real estate acquired for a schoolhouse site it shall revert, with improvements thereon, to the owner of the tract from which it was taken, upon re*48 payment of the purchase price without interest, together with the value of the improvements, to be determined by arbitration, but during its use the owner of the right of reversion shall have no interest in or control over the premises.”
In the case at bar, there was a proviso in the deed from the original grantor, as above indicated, but its terms are not literally the same as the proviso of the statute. It is argued that these terms are more favorable to the district than are the terms of the statute, and that they should be construed in the light most favorable to the school district, on the theory that the law abhors a forfeiture.
We think it clear that the proviso in the deed should be construed in the light of the statute then existing. We see no inconsistency between the two. The proviso in the deed was a manifest attempt to save to the acquiescent grantor the benefit of the existing statute, which would concededly apply if the land were taken by condemnation. Sec. 2816 is not a forfeiture statute. It provides for rescission, rather than forfeiture, with full compensation .to the school district for the property and improvements to be thus taken. The cases cited by appellant, applying strict rules of construction to avoid a forfeiture, are not fairly applicable. The petition for rehearing must therefore be — Overruled.