Hilton v. Cramer

KNÍGHT, Circuit Judge. This appeal is from a judgment of condemnation of one acre of land for school purposes and an award of damages based upon the verdict of a jury, and from an order denying new trial. Appellant seeks to rely upon assignments to- the effect that the evidence was insufficient to support the judgment, but has failed to cause it to affirmatively appear that his brief contains all the material evidence received upon the trial as required by section 3149, R. C. 1919, and such alleged insufficiency cannot be considered. This rule is too well established to require the citation of authorities. The land involved is described in the judgment as “one square acre in the extreme southeast corner of the southeast quarter, * * * exclusive of land in the public highway.” Appellant contends that this is in violation, of section 7496, R. C. 1919, as amended by chapter 180, Laws of 1919, requiring that land taken as a schoolhouse site be situated upon a section line or upon regularly laid out highway. There is no merit in this contention. The land taken does not include the strip of land 33 feet in width along the section line constituting one-half of the highway as existing under the provisions of sections 8519 and 8521, R. C. 1919; it is, however, situated upon a section line, and is situated upon a highway as provided -by said section; the word “upon” as here used meaning along, near to, o-r along the side of. Webster’s International Dictionary; 29 Cyc. 1484; Niblett v. Nashville, 12 Heisk. (Tenn) 684, 27 Am. Rep. 755; Burnam v. Banks, 45 Mo. 349; Ryan v. Preston, 32 Misc. Rep. 92, 66 N. Y. S. 162. Appellant also complains of an- instruction requiring the jury to find the value of the acre of land exclusive of the highway. This instruction was proper. The judgment and order appealed from are affirmed. KNIGHT, Circuit Judge, sitting in lieu of DILLON, J.