Derichs v. Lake Creek School Dist.

BRO'WN, P. J.

This' is a -controversy over the amount to which plaintiff, as parent of three- children 'attending' a country school, is entitled for transportation. The statute applicable to the situation is chapter 153 of the Laws of 1925, which provides that, when pupils reside more than two and one-half miles from the nearest schoolhouse in the school district, and not to exceed three miles, the parent shall receive from the school district 10 cents a day for each pupil. It is conceded that the three children attended school during the school years 1925-1926 and 1926-1927 an aggregate of 945 days for all three. The distance from their home to the schoolhouse by section lines, which constituted' the only public highway, was two and three-quarter miles, but by a trail designated as the “east route” through pastures owned by a neighbor between plaintiff’s residence and the schoolhouse, and which was used! part of the time by the children, the distance was less than two and one-half miles. After having used this trail for about seven weeks, the owner of the pasture found that a gate on the trail through which the children had to pass was being left open by them because it was too heavy for them to close. At this time he forbade them to use this way any longer, and directed them for the future to follow a route which went part way on the same trail but deviated therefrom so as to come through a gate near his house where he could close it himself if the children should happen to leave it open. This way is designated as the “west route,” and the distance between plaintiff’s residence and the schoolhouse by the “west route” is somewhat over two and one-half miles.

The evidence was conflicting as to the number of days the children traveled by either route through the pasture and the number of days they traveled by section lines. The court found that the children attended school an aggregate of 945 days, that they traveled an aggregate of about 50 days by the section line, and that the remainder of the time, 895 da)'s, they traveled less than two and one-half miles by following the trail through the pasture. The court accordingly rendered judgment for the plaintiff for 10 cents per child per day for 50 days, amounting to $15, together with interest, and costs to defendant, from which judgment and from an order denying his motion for a new trial, plaintiff appeals. We do not think it material to determine how many days the children traveled by one route or how many by another. The statute provides that:

“The distance traveled by the most direct route, to be established by the District Board, subject to an appeal as provided for appeals from decisions of School Boards, relative to school matters, shall be the basis of computation.”

No route was ever established by the board. In September, 1926, the board adopted a resolution to the effect that plaintiff - Should have his children travel by the section lines if he desired to be paid mileage. The board: is not authorized to direct or compel children to travel by a specified route. Its authority is to establish a route which shall be the basis of computation of the distance by which the amount of compensation is to be measured. This route must be along section lines or upon a regularly laid out public highway. It must be a highway which is maintained in a reasonable fit condition for travel, and which the children have a right to travel, not a trail which they may be forbidden to use at any time by the owner of the land over which the trail goes. It is undisputed that the distance between plaintiff’s residence and the schoolhouse over any section line or regularly laid, out highway was more than two and one-half miles, and we think plaintiff was entitled to 10 cents a day for the time each child attended school without regard to whether or not on some days they actually traveled a shorter distance than two and one-half miles by cutting through a neighbor’s pasture.

The judgment and order denying a new trial are reversed and the cause remanded, with directions to the trial court to enter judgment on its findings for the sum prayed for in the complaint.

POLLEY, 'SHERWOOD, and BURCH, JJ., concur.