103 N.W. 756 | N.D. | 1905
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 tire 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 school house on the hill at the south end. .of Sixth street, in Peterson’s field,” is too indefinite,
The court gave the following instruction1 to the jury: “You should fix the value of these two acres as of the date of this trial, but should not take into consideration anything that may have been done by defendant in the way of improvement in the property
The contention is advanced that the evidence does not sustain the finding of the jury that the market value of the land at the time of the trial was only $300. There was a wide discrepancy in the evidence on the question of value as given by the witnesses. There is competent evidence -in the record .that the value of the land was much less than that fixed by the jury, and evidence
Two witnesses were recalled, and gave their estimate of the value of the land, concerning which they were not examined when first called. This is claimed to be a prejudicial error. Conceding that it was irregular, and that the matter of the value of the property was a matter to be proved by plaintiff as a part of its main case, we cannot sustain the contention that it was a prejudicial error. Such matters rest largely in the discretion of the trial court. Its action in this instance was not an abuse of discretion.
The judgment did not award taxable costs to the defendant or to the plaintiff. The defendant claims that he is entitled to such costs. Pie did not make any motion to that effect, nor in any way bring the matter to the attention of the trial court, so far as the record shows. The statute which provides for taking and condemning property for public purposes under the power of eminent domain does not expressly provide for costs in favor of either party. Section 5972, Rev. Codes 1899, being a part of the eminent domain act, provides that “except as otherwise provided in this chapter the provisions of this Code relative to civil actions are applicable to and constitute the rules of practice in the proceedings mentioned in this chapter.” It is contended that this section makes the general statute relative to costs applicable to condemnation proceedings. We think that such would be a strained construction of the section. However, in our view of the law applicable to the case, the construction to be placed upon that section becomes unimportant, as the result will be the same. The conclusion that we have reached is that the defendant was entitled to his taxable costs, although no statute authorizes such allowance. This is based upon section 14 of the constitution, which reads as follows: “Private property shall not be taken or damaged for public use without just compensation having first been made to or paid into court for the owner,” etc. Section 5955, Rev. Codes 1899, is to the same effect. To hold that the owner must pay his own costs in resisting attempts to take his land against his consent, without first paying adequate and just compensation therefor, would nullify to a certain extent this constitutional guaranty, and result in. giving him less than just compensation for his property. The constitutional provision means that he shall receive
The respondent contends that, this question not having been raised in the district court, it is now too late to raise it. The
The district court is directed to modify the judgment by the allowance of statutory costs after they have been faxed by the clerk in the usual manner in civil actions.
Modified and affirmed.