School District No. 1 v. Powers , 62 Mont. 151 ( 1922 )

MR. JUSTICE COOPER

delivered the opinion of the court.

On the seventh day of September, 1918, the plaintiff, the board of school trustees of school district No. 1 of Silver Bow county, passed a resolution reciting that it was necessary to condemn lot 3 in block 70 of the Butte town site for school purposes. Upon the resolution this proceeding was instituted in the district court of Silver Bow county. The defendant Powers owns the fee, and on the date of the commencement of this proceeding Downing held a lease on the real estate running to May 1, 1920. The issues were made up by the complaint, the separate answers of each of the defendants, and replies thereto. On January 25 following appraisers appointed by the court returned reports estimating the interest of Powers to be of -the value of $14,500, and that of Downing in the sum of $2,750. From these awards plaintiff appealed to the district court, where, upon a trial by court and jury, the awards were increased from $14,500 to $18,500, and from $2,750 to $4,000, respectively. Judgments were entered upon these verdicts on April 12, 1912. Motions- for new trials were thereafter made and by the court denied.

By resolution passed by the v plaintiff board on September 30, 1919, it elected to abandon the proceedings altogether and to relinquish “any and all claims it might have against either or both of the defendants for or on account of the condemnation proceedings.” Pursuant to the resolution, the plaintiff, on October 25, 1919, moved to dismiss the proceeding in its entirety. This motion the court also denied, and plaintiff appeals to this court for a vindication of its right to abandon the project and dismiss the proceeding. If the plaintiff is correct in its contention, we are absolved from a consideration of the appeal upon its merits.

Plaintiff is a public institution, and, in seeking to subject tbe property of the defendants to school purposes, is serving the people at large within the confines of the school district. Preliminarily we may inquire what, if any, changes the proceedings have wrought in the situation of the parties or the condition of the property. The record fails to disclose any transfer of title or disturbance of possession. The plaintiff has made no deposit of money and has refused to satisfy the judgments. Defendants, have suffered neither inconvenience nor damage by reason of the institution or prosecution of the proceedings, at least beyond the costs legally incurred in their defense. No contract was ever made between the parties. The proceeding is in the nature of an inquest upon the part of the board for the purpose of ascertaining the benefits or losses which will accrue to the owners by reason of the proposed taking. "What are the judgments returned1? The following language will be found in each of them: “That the plaintiff pay as compensation to [naming him] the person entitled thereto the amount ascertained by said verdict [specifying the amount] together with his costs:”

The board, in virtue of its right of eminent domain granted by the Constitution, is authorized, upon making just compensation therefor, to take the property for public purposes. The amount to be paid must be just, not merely to the individual whose property is taken, but to the public'which is to pay for it. Section 14 of Article III of our Constitution provides that: “Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner.” Indeed,- it seems generally to have been held, where the constitutional provision is [1,2] simply that private property shall not be taken without compensation, as ours does, that title to the land dues not pass until actual payment or tender of compensation. (Note, 16 L. R. A. (n. s.) 538.) The inspection of the property and the appraisal of the damages are merely preliminary' steps to ascertain the terms upon which the property can be taken for the purpose desired, if the board shall eventually see fit to use it for school purposes. If it is accepted and the board concludes to take it, that acceptance and that taking is consummated only by a payment or deposit of the money for the use of the owner as finally awarded. (Baltimore etc. Ry. Co. v. Nesbit, 10 How. (U. S.) 395, 13 L. Ed. 469 [see, also, Rose’s U. S. Notes].) The effect of the ruling of the trial court, if carried out, would be to give the defendants the money of the school district for property it had not actually taken, and upon which it had not in fact entered for that purpose, merely because the legal formalities looking to its taking had been carried to judgment. As is said by the supreme court of Washington in State ex rel. Struntz v. Spokane County, 85 Wash. 187, 147 Pac. 879: “We know of no rule of law that compels a party seeking to condemn land for public use to proceed with the appropriation when in its judgment the price to be paid is exorbitant. The cost of construction and other necessary expenses are questions which necessarily must be taken into consideration by the board of county commissioners before it can determine whether the financial condition of the county treasury or the funds available for such purposes warrant the construction of a proposed county highway, and it is because of this that such a board is vested with a discretion to determine whether or not it will proceed—a discretion which cannot be properly exercised until it has been definitely, or at least approximately, ascertained what the total cost will be. Since the courts exercise judicial powers only, it follows that this discretion, which is of a legislative character, cannot be controlled by the courts.” Numerous authorities in support of the doctrine announced, including Lewis on Eminent Domain, sections 656, 955, 1 Elliott on Roads and Streets, section 307, and Dillon on Municipal Corporations (fifth edition), section 1044, are cited in the opinion; and while the issue involved the condemnation of a county road, the principle announced is just as applicable to the present situation.

Rehearing denied March 6, 1922.

In the second edition of Nichols on Eminent Domain, section 417, page 1099, the following is to be found: “In the states in which condemnation is effected by judicial proceedings it is almost universally held that the mere fact that compensation has been assessed does not prevent a discontinuance of the proceedings. In fact, one of the strongest arguments in favor of this method of exercising the power of eminent domain is that public policy requires the cost of a public improvement to be ascertained before it can be finally determined that it is advisable to undertake the work, and that this cannot be ’ done until the compensation for the land has been finally assessed by the jury or other tribunal required by the constitution or statutes. The award in such states is merely an offer which the public agency contemplating the work may accept or decline as it sees fit.”

The district court, in denying the plaintiff’s motion to dismiss the proceeding, was wrong. The order appealed from is reversed, with directions to sustain the motion to dismiss.

Reversed.

Mr. Chief Justice Brantlt and Associate Justices Reynolds, Holloway . and Galen concur.