164 P. 190 | Utah | 1917
The town of Tremonton, in Box Elder County, Utah, commenced this proceeding under our eminent domain statute to condemn a certain spring and to appropriate the waters thereof for the use of the inhabitants of said town. At the hearing it was shown that the spring in question was the property of the defendant William Johnston, and hence the other defendants will not be further noticed.
The proceeding is based upon Comp. Laws 1907, section 206x2, which reads as follows:
"That it shall be lawful for the city council or board of trustees of any city or town in this state to purchase or lease all or any part of any water, waterworks system, water supply, bonds, stocks, or property connected therewith; or, whenever such city council or board of trustees shall deem it necessary for the public good, they shall have the right to*309 bring condemnation proceedings to condemn water, water rights, and all rights and privileges of any person or corporation; provided, that in all condemnation proceedings, the value of all land must be considered in connection with said water or water rights used for the purpose of supplying any city or town, or the inhabitants thereof, with water; provided, that if, within thirty days after the passage and publication of a resolution or ordinance for the purchase, or lease, or condemnation herein provided, one-third of the resident taxpayers of any city or town, as shown by the assessment roll thereof, shall protest against the purchase, or lease, or condemnation proceedings contemplated, then said proposed purchase, lease, or condemnation shall be referred to a special election and if confirmed by a majority vote thereat, shall take effect; otherwise it shall be void. ’ ’
The complaint is too long to be copied in this opinion. Nor is it necessary to do that, since the sole question to be determined hinges upon the sufficiency of the allegations in paragraph 15 of the complaint, which contains the only allegations respecting the acts or proceedings taken by the town trustees authorizing the condemnation proceedings. That paragraph reads as follows:
“Plaintiff further alleges that by virtue of a resolution passed by the town of Tremonton the board of trustees of the said town decided to submit the question of incurring a bonded indebtedness to the qualified electors who had paid a property tax in said town for the purpose of supplying the said town with water. Notice of said election was duly given, the purpose of the same was set forth, and the question was voted upon by a special election wherein a majority of the qualified electors voted in favor of the bond issue for the purpose of supplying water for the said town of Tremonton. That thereafter the said board of trustees provided by ordinance for the disposal of said bonds, and that said bonds were thereafter sold.”
No demurrer was interposed to the complaint, and the defendants answered the same, admitting certain allegations and denying others. Johnston, however, denied that it was necessary to condemn the spring and to appropriate the
In Vreeland v. Jersey City, 54 N. J. Law 49, 22 Atl. 1052, the court states the rule in the following words:
“Statutes conferring the power of condemnation under the right of eminent domain are strictly construed. Every condition prescribed by the Legislature in the grant must be complied with, and the proceedings to condemn must be conducted in the manner and with the formalities prescribed in the grant of power. Formalities and modes of procedure prescribed are of the essence of the grant, which the courts cannot disregard on a conception that they are not essential.”
“Where an ordinance, resolution, or election must authorize condemnation before said proceedings may he instituted, the petition must allege that such authorization has been given in proper form, as a jurisdictional fact.”
In 2 Lewis, Eminent Domain, section 596, tbe author states the rule thus:
“When the taking is by a municipal corporation, it usually must he authorized by a vote of the governing body, and this must be passed in such manner and by such formalities as are required by law. No general rule can be laid down, except that the statute must be strictly complied with.”
Numerous cases are cited in support-of the author’s text, and a large number of concrete cases are given in the body of the section illustrating the doctrine. The text quoted from 8 Standard Ency. Pro. is also supported by a large number of cases.
In Whitehead v. Denver, 13 Colo. App. 134, 56 Pac. 913, it is held that, .where a statute requires certain things to be done by a municipality before initiating condemnation proceedings, the things required to be done constitute a condition precedent to the right to institute the proceedings and must be alleged and proved. It is not necessary to pursue the authorities farther.
We are of the opinion that before the town of Tremonton was authorized to commence condemnation proceedings to condemn the spring and to appropriate the waters thereof it was necessary that the board of trustees should first adopt an ordinance or resolution in which they declared that it is necessary that the spring be condemned and the waters thereof appropriated for the .use of the inhabitants of the town. Had that been done, the resident taxpayers would have been given the contemplated opportunity to protest as provided by the statute. It may be that a city or town may seek to condemn the property of one or more of the resident taxpayers, and if that be the case such taxpayers should be given an opportunity to protest. The right to protest is, however, given to all resident taxpayers, whether their property is sought to be taken or not, and the town or city must afford them the opportunity to protest as required by the statute. It follows, therefore, that the passage of a resolution or ordinance as required by the statute before instituting the condemnation proceedings in question is jurisdictional, and hence Johnston did not waive his right to assail the judgment at any time.
It is, however, contended by the town’s attorneys that the proceedings were instituted under Comp. Laws 1907, section 309. That section provides for the calling of a special election to vote bonds the proceeds of which ai’e to be applied in payment for the water or for the property condemned or purchased by the town, and has nothing to do with the authority to institute the condemnation proceedings. If counsel’s contention should prevail in that regard, then we would in effect be required to repeal section 206x2, supra. Moreover, under that section one-third of the taxpayers may compel an election regarding the question of whether the condemnation or purchase of the property sought to be acquired is necessary. When the bonds are voted for, the question, of necessity, is no longer an open question. There is no escape from the con-
For the reasons stated, the judgment is reversed, and the ease is remanded to the District Court of Box Elder County, with directions to grant a new trial, to permit the plaintiff, if it is so advised, to amend its complaint in the particulars stated, and in ease the complaint is amended so as to comply with the views herein expressed, to proceed with the case in the usual way, and in case the plaintiff refuses or neglects to amend its complaint within a reasonable time to be fixed