229 Mo. 510 | Mo. | 1910
— This is an action brought by the school district of Columbia, to condemn land for a schoolhouse site. The plaintiff since 1872 has been acting as a city school district, with a board of six directors. In April, 1909, said school district had voted and sold bonds in the sum of $17,500' for the purpose of buying a site and erecting a schoolhouse thereon. In May, 1909, the board of directors, by an affirmative
‘ ‘ That the defendants are the owners of said above described tract as hereinafter set forth, to-wit, that on or about the — day of February, 1891, one Patrick H. Jones died seized in fee of about fifty acres of land in Boone County, Missouri, of which said tract is a part, and by his last will and testament, which was duly admitted to probate by the probate court of Boone County, Missouri, devised the same to his wife, Eliza K. Jones, for and during her natural life, and directed that at her death said fifty acres should be sold by his executor, who is the defendant A. H. Jones, and that the proceeds thereof should be divided per capita between the defendant, Mrs. Cora N. Tillery, and the children of Mrs. Louisa Carson; and that it was further provided by'said will that if the said Mrs. Cora N. Tillery shoud die prior to the distribution, her share of the proceeds should descend to her bodily heirs, and if she should die without heirs of the body her surviving then to the children of Mrs. Elizabeth Murry, who are the defendants, Erl Murry, Thomas H. Murry and Lee Murry.
“The said Eliza K. Jones accepted the provisions of said will and on or about the — day of March, 1905, made, executed and delivered her certain deed of conveyance whereby she conveyed her aforesaid life estate in said tract of land unto the defendant, John A. Stewart.
“That Benia M. Ricketts, Kella B. Shields, Mary H. Dinkle, G-ussie E. Richards, and Stella R. Champion were and are the sole and only children of the above mentioned Mrs. Louisa Carson, and that they on or about the — day of February, 1905, made, executed and delivered their certain deed of conveyance, whereby they conveyed all of their right, title and interest in*516 said tract of land and in the proceeds of sale thereof to the defendant, John A. Stewart.
“That the defendant, Mary Tillery, is the only child of the defendant, Mrs. Cora Tillery, and as such has a contingent interest in said tract of land and in the proceeds of sale thereof. And that the defendant, A. H. Jones, as the executor of the will of the said Patrick A. Jones, deceased, claims to own and hold the legal title to said tract of land for the purpose of sale.
“Petitioner further states that by reason of the diverse and uncertain interests of said defendánts as owners, this petitioner is unable to acquire the title to said tract of land and that it is unable to agree with said owners as to the price to be paid therefor.
“That said above described tract of land is suitable and necessary for a schoolhouse site for the petitioning district, and that the board of directors thereof have authorized and directed this proceeding for the condemnation thereof; wherefore petitioner prays that summons be issued herein as provided by law notifying said defendants of the time and place when this petition will be heard and said above described tract of land be condemned and the title thereto be vested in said school district for the purposes aforesaid, and to that end that three disinterested freeholders of Boone county, Missouri, be appointed to assess the damages for the appropriation thereof, and for such other orders as may be necessary in the premises.”
To this petition, defendants by appropriate pleadings raised the several questions to be disposed of in the case.
Commissioners were appointed who assessed the damages at $3750, which sum was paid into court. By its judgment, the court approved the report of the commissioners, condemned the property for a school site and vested title in the plaintiff. The judgment further details how defendants were interested in the
Defendants raise numerous questions, thus (1) that the plaintiff was never legally organized as a school district, (2) that city school districts have no power to condemn property for a schoolhouse site, (3) that if such school districts do have such power, this plaintiff has not selected the site according to the terms of the statute, and therefore this action must fail, (4) that there was no attempt to acquire the title by purchase before the institution of this suit, and for that reason the action must fail, and (5) that there was no evidence upon which the court could commute the life estate.
In view of many facts which necessarily will follow in the course of the opinion, this sufficiently states the controversy.
I. The first question stated above does not appear to be seriously urged in the brief of the defendants. It is true that throughout the brief are found such expressions as “The School District of Columbia which professed to be organized under the provisions of Art. 2, of Chap. 154, R. S. 1899,” but counsel have not dignified the question with a separate point in the brief, nor have they discussed the matter or cited authorities thereon. It appears in the record, that since 1872 the plaintiff has been electing six directors, and doing business as a city school district, under the name of “School District of Columbia,” and that it has been known and recognized as a city school district. There is evidence offered to show the due incorporation of the plaintiff, but we shall not go into the record on
In the latter case, Lamm, J., took the pains to collate a great number of the cases, and we shall not reiterate now. The point made is not well taken and will be ruled against the defendants.
. II. The next contention is that school districts organized under article 2, of chapter 154, have no legal power to condemn property for a sehoolhouse site. Coupled with this, it is urged that'in a proceeding to condemn the right to condemn must clearly appear. To the latter contention we assent. That the right to exercise the power of eminent domain must clearly appear, we think well-settled law. The law pertaining to schools is collated under chapter 154, which chapter has some seven articles. Article one relates to the country school districts, which have three directors. Article two relates to city, town and village districts, which have six directors. Under article two, appear the following sections:
“Sec. 9878. In all such school districts as are mentioned in this article, that have a population exceeding five thousand and not exceeding one hundred thousand inhabitants, the board of directors of such school districts shall have full power, by an affirmative vote of not less than two-thirds of all the members of such board, to locate and direct and authorize the purchase of sites for schoolhouses, libraries and school offices, and by a like vote to direct and authorize the*519 sale of any real estate or other property belonging to snch school districts; and if two-thirds of the members of snch board shall authorize and direct the sale of such real estate, the same shall be entered of record by the secretary, together with the terms of such sale, and the president of such board shall, in the name of such board, execute the necessary deed or deeds of conveyance to the purchaser or purchasers thereof; which said deeds of conveyance shall be by him acknowledged, as other deeds conveying real estate are by law required to be acknowledged.”
“9860. Any city, town or village, the plat of which has been previously filed in the recorder’s office of the county in which the same is situated, may, together with the territory which is or may be attached thereto, be organized into a single school district, and, when so organized, shall be a body corporate, and known as the school district of---, and in that name may sue and be sued, and possess the same corporate powers and be governed the same as other school districts, except as herein provided.”
Under article 1, we have section 9772, a part of which reads: “And whenever a majority of the qualified voters and taxpayers of any school district, at any annual or special meeting called for that purpose, shall determine that it is necessary to have additional grounds for school purposes, then the board of directors may proceed to condemn and pay for any amount of land adjacent to the schoolhouse site, as provided in this section.”
Prom these three several sections the plaintiff avers that its right to condemn property is clearly given by express words of the law. We are of the opinion that the power is so given. By section 9860, supra, city, town or village school districts shall “possess the same corporate powers except as herein provided.” The term “other school districts” clearly refers to the class of school districts mentioned in the preceding
Here we have an express grant of the same powers as are granted to the school districts having but three directors, with the modification made by the terms “except as herein provided.” Under section 9772, the other school districts mentioned are in words given the express power to condemn lands for a schoolhouse site. If therefore, the city, town or village districts have the same powers, they necessarily have the power to condemn. When these statutory provisions are taken together, as they must be, there is no doubt of the grant of power.
The power here granted is much more explicitly granted than in the case of So. Ill. Bridge Co. v. Stone, 174 Mo. 1. The reasoning of that case settles the controversy in this case. We therefore hold that city, town and village school districts have the express statutory authority to exercise the powers of eminent domain. Nor do we think the recent act of the Legislature, Laws of 1909, l. c. 838, amounts to a legislative construction contrary to this view. This point will be ruled against defendants.
III. Next it is contended that although it be conceded that city school districts have the power to condemn lands for a school site, yet in the case at bar, the site has never been selected as required by law, and until lawfully selected no proceeding to condemn if could be maintained. We grant it that there is no power to condemn a school site, until such has been duly selected pursuant to law. Condemnation statutes are strictly construed. They should be so construed and such has been the course of this court in reference thereto.
Defendants contend that the selection of the site must be by a vote of the voters of the districts. They
IV. In the fourth place the defendants urge that the petition does not aver nor does the proof show that the school hoard attempted to agree with the owners of the property as to the purchase and price thereof and for that reason this case must fail. On this question, the material portion of section 9772 reads: “Whenever any district shall select one or more sites . . . and cannot agree with the owner thereof as to the price to he paid for the same, or for any other cause cannot secure a title thereto, the board of directors may proceed to condemn.”
It will he noted that there are two distinct conditions under which the district may proceed to condemn, (1) when such district “cannot agree with the owner thereof, as to the price to he paid for the same,” and (2) “or for any other cause cannot.secure a title thereto.” The.petition in this cause was drawn under the latter clause. It details the exact condition of the title, and these details show that no agreement could have been made. The pleadings in this case
Y. Lastly it was urged that there was error in' commuting the life estate. Defendants urge that there was no evidence as to the age of the life tenant. This contention is well taken. There is no evidence in the record as to the age of Eliza K. Jones, the life tenant under the will of Patrick II. Jones. Mrs. Jones, now Mrs. Yivion, conveyed her life estate to defendant Stewart, and the commutation of the life estate was made to Mr. Stewart in the sum of $1687.95. How the court was able to reach this conclusion does not appear from the record. Respondent school district in the brief suggests that it was commuted by consent, but on this point we find nothing in the record. There is neither evidence nor admission as to the age of the life tenant. That part of the judgment and decree is therefore without evidence to support it. Defendant Stewart seems to have been satisfied, as he has not appealed, but his satisfaction does not meet the contention of the other defendants who have appealed. '
Respondent further urges that this matter is not covered by the motion for new trial, but in this contention there is error. The motion says: “Because the said verdict and judgment is against the law and the evidence and the iveight of the evidence ” This
For this error the judgment will have to be reversed and remanded, but we think it should be with directions. The real question between plaintiff and defendants has been properly adjudicated, and there is no reason for a retrial of that issue. The present judgment is correct with this single exception. The plaintiff had the right to condemn and the title was properly decreed in it. We will, under these circumstances, reverse the judgment and remand- the cause for the sole purpose of opening up the case upon this single point. When such proof has been heard, and the trial court has upon that proof reached a conclusion as to the value of the life estate, the present judgment and decree shall be modified, if necessary, to meet the conelu-' sion of the court upon that question, and when so modified, shall be re-entered as the judgment of the court. With these directions the judgment is reversed and the cause, remanded.