School District of Ogden v. Smith

Wood, J., (after stating the facts). Section 4 of the act under which the condemnation of the property was obtained by the appellant provides, among other things, that “if the use or enjoyment of the property is needed forthwith for the construction of any building or prpper carrying on of any school,” the district may “request the court, or the judge thereof, at a convenient day, notice of such application being given such owner, to fix a proper sum of money to be deposited as security for the payment of such damages as may be assessed, whereupon they shall have authority to take immediate possession of such premises for uses as set up in their petition.” Section 5 of the act provides, “If the damages or proper compensation for such property are not agreed upon before the case is called for trial in its regular order, a jury shall be'empanelled who, after hearing all the testimony, shall fix the compensation to be paid by such district, not exceeding the actual- value of the land taken,” etc. And section 6 provides: “After the compensation is so fixed by the jury, as in the preceding section provided, the school district shall, within sixty days thereafter pay to the owner of said property, or to the clerk of the court wherein such verdict was rendered, the amount of such verdict, and the court shall thereupon enter an order condemning said property and vesting the title in the same for school purposes in said district; provided, either party shall have the right of appeal from any such order or judgment.” It thus appears that the power conferred upon school districts under the above act to condemn private property for school purposes is similar to the power of eminent domain conferred upon railroad corporations. See Kirby’s Digest, § § 2947 and 2951 to 2957 inclusive. In Kansas City Southern Railway Co. v. Boles, 88 Ark. 533, we held that the value of the land taken for right-of-way purposes was to be estimated as of the time when the petition for condemnation was filed. So here, appellee was entitled to have his compensation from the time that the appellant filed its petition to condemn his land and the jury, in awárding damages, estimated the value of the land at the time the petition was filed. Their award included the value of the land and all appurtenances thereon and the value of all crops growing thereon. It was tantamount to a sale from appellee to appellant with the surrender of the immediate possession to appellant, for this statute contemplates that the school district shall have the right to the immediate possession of the premises upon complying with the provisions of the statute in securing the compensation therefor to the owner, and, while the title to the property is not divested out of the owner and vested in the school district until the court shall have made an order condemning the property and vesting the title to same in the school district, nevertheless the district is entitled to the possession from -the time it pays the amount of the award to the owner of the property or to the clerk of the court wherein the verdict was rendered for the owner’s benefit. Tbe purpose of the statute was to give .the school district the right of immediate possession upon the payment of the amount of compensation awarded by the jury, if possession had not been previously taken by order of the judge of the court upon securing the amount of such damages under section 4. The right to take immediate possession is conferred upon the school district when these damages are secured by a deposit as provided in section 4, and, if this is not done, then, construing the whole act, we are of the opinion that it was the purpose bo give bhe districb the right to the possession as soon as the compensation was paid, whether the order of th^ court condemning the property and vesting the title was immediately made thereafter or not. If the school district pays into court the amount awarded as fixed by the jury, it is entitled to possession of the property from that time, the same as if it had purchased the same outright with a contract for immediate delivery, and if the owner, upon demand of possession by the district, refuses to surrender the same, whatever damages in the meantime may result to the district by reason of the refusal of the owner to surrender possession accrue to the district and the owner is liable to the district for the same. The right to the possession of the property became absolute in the district upon the payment of the compensation into court as prescribed by the statute, and when the order of court was made vesting the title in appellant it related back to the date of the filing of the petition for condemnation. If the owner continues in possession after the compensation has been paid into court he, from that time on, is a mere tenant by sufferance. 15 Cyc. 926 and 1023. See, also, Fort Wayne & S. W. Traction Co. v. Fort Wayne & Wabash Ry. et al., 16 L. R. A. (N. S.) 543. It follows that the complaint stated a cause of action^ and the court erred in sustaining -appellee’s demurrer thereto and in dismissing the complaint. The judgment is, therefore, reversed, and the cause will he remanded with directions to overrule the demurrer.