94 Ky. 343 | Ky. Ct. App. | 1893
delivered the opinion of the court.
Tlie trustees of common school district No. 7, of Letcher county, having selected a parcel of land as the most suitable for a school-house site, and' being unable to agree with the owner as to its price, he, in fact, declining to sell at any price, made application to County Judge Baker for a writ of ad quod damnum. This was made by petition, and Moses Bently, the owner of the land, was made a defendnnt. He appeared and filed an answer, alleging that
That section gives them the right, with the consent of the county superintendent, to “take land, by purchase or donation, for the purpose of erecting thereon a school-house ; ” and “ if they can not agree with the owner of any land most suitable for a school-house site, as to the price and terms of purchase and sales thereof, they shall apply to the'judge of the county court by petition, in which they shall set forth, by metes and bounds, the lands they seek to condemn,.
In this case all the necessary requirements and conditions existed, entitling the applicants to the writ, as shown by their petition before the county judge, and the question is, did that judge have any discretion as to its issual, and should he have allowed the answer to be filed?
It is argued that in proceedings for the condemnation of lands for turnpike and railroad purposes, to which the school law refers, such writ must, issue upon application as a matter of right; but on examination of-the statute on this subject, chapter 18 5, pages 281, 282, General Statutes, we find that upon the proper application made, the county court is required to appoint commissioners to assess the damages, who proceed as directed by the statute ex parte, and, after filing their report, a summons is issued agdinst the owner of the land sought to be condemned, to show cause why the report shall not be confirmed, and the court shall examine the report, and if it be in conformity with the act regulating the proceedings, may confirm same to the extent only to which no exceptions have been filed; and when exceptions .are filed, the court shall forthwith cause a jury to be empanneled to try the issues of fact made by the exceptions, the court sending the jury to view the land if desired. If sufficient cause be not shown for setting aside the verdict, the court will render judgment in conformity thereto.
Some legal tribunal must pass on the question of whether an orchard is about to be taken, or a garden or burying-ground; and these determinations are not ministerial but judicial acts. The provision 'that one-third of the school electors of any district may appeal from the decision of the trustees in the location of the school house, or site for the same, to the county superintendent of the county, whose decision in the case shall be final,” does not affect the land-owner or abridge his right to have the •condemnation proceedings conform to the law purporting to authorize them. The act of county judge Baker, therefore, in dismissing the petition and denying the right of the trustee to condemn the particu
The effort by the two Bentleys to withdraw their names as plaintiffs in the action, did not affect the proceeding. The trustees of district No. 7 are created a body-politic, and may sue, and in this case did sue, as such body. The individuals might have withdrawn, because they did not want to be individually bound for costs. Nor was it proper to allow Baker, the county judge, to file an answer raising the issues of fact as to the location of the site. He has nothing to dó with those issues, and ban not make them, though, as judge of the county court, he decided them. His connection and interest with the case then ends.
But his judicial action not being controllable by mandamus, the judgment dismissing the petition therefor is affirmed.