author: JOHNSON, Judge.

text:
    John W. SMITH, Plaintiff and Appellant, v. MOUNTRAIL COUNTY, a duly organized County in North Dakota; Edward Will, Alan Miller, Trustee, Charles R. Fox, Bruce Cabot, J. J. Cohn, Hayes Goetz, Walter Bruington, J. S. Abercrombie, Edward Dannewitz, F. B. Taylor, Flora Walter, and all other persons unknown, claiming to have any right, title interest in or lien or encumbrance upon the property described in the Complaint, Defendants and Respondents.
    No. 7489.
    Supreme Court of North Dakota.
    April 19, 1955.
    Rehearing Denied June 6, 1955.

      Hyland, Foster & Conmy, Bismarck, for plaintiff and appellant.
    Ella Van Berkom, Minot, for defendants and respondents Edward Will and Edward. Dannewitz.
    Cox, Pearce & Engebretson, Bismarck, for defendants and respondents J. S. Aber-crombie and Charles R. Fox.
   JOHNSON, Judge.

This action is brought in statutory form, Section 32-1704, NDRC 1943, to determine adverse claims. The action involves the East Half of the Northwest Quarter (E14NW14) and the West Half of the Northeast Quarter (WJ^NE^) of Section 26, Township 157 North of Range 94 West of the 5th P.M., Mountrail County, North Dakota.

The defendant, Edward Will, answered separately alleging ownership of the East Half of the Northwest Quarter (El/⅞-NWJ4) and the Southwest Quarter of the Northeast Quarter . (SW14NE14) of Section 26, Township 157, Range 94, and sets forth that his source of title is derived from a tax deed from Mountrail County, dated December 20, 1943. He further alleges that his title was adjudicated by the District Court of Mountrail County, North Dakota, resulting in judgment filed and .docketed on the ;31st day of August, 1944; that he has placed improvements ' on the land consisting of fencing, removing rocks, and breaking the land, of the aggregate value of $500 and prays for judgment in that amount in the event that the plaintiff prevails.

Edward Dannewitz answered separately, alleging his ownership of the Northwest Quarter of the Northeast Quarter (NWi/j-NE}4) of Section 26, Township 157, Range ■94. Dannewitz obtained his title from Edward Will by warranty deed dated December 12, 1947, and he alleges that he has been in open and notorious possession of the premises since that date.

The defendant Charles R. Fox answers separately and states that he has a valid and subsisting royalty interest in and to the premises under and by virtue of an oil and gas lease dated August 10, 1949, made, executed and delivered by Edward Will, a single man, to Alan Miller, Trustee, covering the premises described in the plaintiff’s complaint, which lease was for a term of ten years from date and as long thereafter as drilling operations are continued; that thereafter on March 7, 1950, Alan Miller, Trustee, for value, conveyed a Yetth of %th royalty interest in and under said lease to this defendant.

•The -defendant, J. S. Abercrombie, answered separately and alleges that he has a valid and subsisting leasehold interest in the premises described in the plaintiff’s complaint under and by virtue of the oil and gas lease made, executed and delivered by Edward Will, dated August 10, 1949, to Alan Miller, Trustee, and covering the premises described in the plaintiff’s complaint, which lease was for a term of ten years from said date and as long thereafter as drilling operations were conducted, as provided in said lease; that thereafter and on May 15, 1951, said oil and gas'lease was for value sold and assigned to the defendant by Alan Miller individually and as trustee for himself, Bruce Cabot, J. J. Cohn, Hayes Goetz and Walter Bruington, as beneficiaries.

All of the instruments referred to in the answers have been recorded in Mountrail County, North' Dakota, the county in which the land is situated.

Separate replies were made to the answers filed by the above mentioned defendants. It is unnecessary to set forth the contents of these replies. None of them allege any affirmative defenses or other grounds of relief included within the scope of Section 32-1709, NDRC 1943.

The trial court determined that the quiet title action maintained by Edward Will adjudicated the adverse claims of Clent Smith and his successors in interest, Alice M. Smith and John W. Smith, as parties to said action under the designation of “all other persons unknown”. Upon this determination by the trial court, judgment was entered decreeing that Edward Will was the owner in fee simple of the premises described as the East Half of the Northwest Quarter (E^4NWi4) and the Southwest Quarter of the Northeast Quarter (SWj4NE^4) of Section 26, Township 157 North, Range 94, subject to existing oil and gas leases made, executed and delivered by Edward Will on said premises. It was further decreed and determined that Edward Dannewitz was the owner in fee simple of the premises described as the Northwest Quarter of the Northeast Quarter (NWJ4~ NEj4) of Section 26, Township 157, Range 94, subject to existing oil and gas leases made and executed by Edward Dannewitz upon the premises.

The plaintiff appeals and demands a trial de noyo.

He makes two contentions: First, that the judgment in the previous quiet title action of Edward Will, plaintiff, v. Axel Pearson, Civil No. 3600, in the District Court of Mountrail County, which judgment was entered August 31, 1944, covering the lands in controversy in the case at bar and other lands, is subject to collateral attack for the reason that the plaintiff was not a party to said action, and was not served as a person unknown; and, Second, that the tax title proceedings are fatally defective by reasons of the absence of a certificate of tax sale.

Mountrail County issued a tax deed by its County Auditor, to itself as a municipal corporation, dated October 1, 1941, and filed January 27, 1942, at 9 a. m., covering the premises involved in this action and other lands. Thereafter it sold the land to Edward Will, by tax deed dated December 20, 1943, and filed for record March 4, 1944. The tax deed covers the land in question as well as other land. On the 19th oí April, 1944, Edward Will, one of the defendants in this action, commenced an action as plaintiff against Axel Pearson and others to quiet the title to the land involved in this action as well as other land. The summons states that the complaint will be filed in the Office of the Clerk of the District Court in and for Mountrail County, North Dakota, and there is subjoined to the summons a notice signed by the plaintiff’s attorney containing a description of the land to which the action relates, which includes the land involved in this action. Section 32-1707,' NDRC 1943. The title to'the action covers several named defendants and also “all person's unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the complaint.”

Oh August 29, 1951, Alice M. Smith, the. mother of the plaintiff, by warranty deed conveyed the premises involved in this action to the plaintiff. The present action was commenced on March 17, 1952. The deed to the plaintiff was recorded'in Mount-rail County, February 29, 1952, or less than three weeks before the commencement of this action. Alice M. Smith was made a party plaintiff in this action, but it would appear she had no interest in the property at the time of the commencement thereof. This action was tried on the 4th day of September, 1953, in the city of Stanley, Mountrail County, North Dakota. At that time, Alice M. Smith was deceased. The plaintiff’s attorney moved to have her name stricken from the title and this motion was granted. This action, therefore, is being carried on by John W. Smith as plaintiff and appellant.

Attached to the summons and complaint in the action of Edward Will against Axel Pearson and others, and known as Case No. 3600 in Mountrail County, North Dakota, is attached ‘a Sheriff’s Return — Defendants Not Found. This return recites:

“that the summons and complaint in the above entitled action came into my hand for service upon the following named defendants on the 22nd day of April 1944, to-wit: (and then it names all of the named defendants and refers to all persons unknown,- etc., then goes on to say) That after making diligent inquiry for the purpose of serving the said summons and complaint, I am unable to make personal service thereof upon said defendants, or any of them; •that such inquiries consisted in part of making inquiries from persons who have lived in the vicinity of the land 'described in the summons for the past 15 or 20 years, such men as James Do-lan, an ex sheriff of Mountrail County, Albert L. Dannewitz, Hans Thronson, Adolph Thoen and others all of White Earth, N. Dak., and in making inquiries at the office of the register of deeds, clerk of the district court, and county judge of Mountrail County, N. Dak; That each and all of the persons from whom inquiries were so made expressed their opinion, that said defendants were not now residents of the State of North Dakqta, or that they had.never heard of them.”

This return is dated April 26, 1944, and signed by Ira Wooster, Sheriff of Mount-rail County, North Dakota.

The affidavit for service of summons by publication is signed by the attorney for the plaintiff, Edward Will, and dated the 26th day of April, 1944, and states with reference to unknown persons:

* * * and all persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the complaint/ in the land described in the complaint are not shown of record in the office of the register of deeds, the clerk of the district court or the county• auditor of Mountrail County, N.- Dak., the county in which the said land lies, and affiant does not know and is unable to ascertain the names, residences or postoffice addresses of any of the persons who are proceeded against as unknown persons defendants;”

The affidavit for publication of the summons further recites that the relief sought in the action consists wholly in excluding the defendants, and each of them, from any interest in, or lien -upon specific real property within the State of North Dakota, which said real property is described in the complaint.

The summons, complaint, sheriff’s return of defendants not found and the affidavit for service of summons by publication were filed in the office of the clerk of the district court of Mountrail County on April 26, 1944. The first publication of the summons was had on April 28, 1944. The summons was published for six consecutive weeks in the Mountrail County Promoter, a weekly newspaper of general circulation published in the city of Stanley, the county seat of Mountrail County.

The defendant Will pleads the action in which he was plaintiff against Axel Pearson and others in bar of this action. The plaintiff in this action, John W. Smith, did not procure any interest in' the property until his mother, Alice M. Smith, deeded the same to him on August 29, 1951.

If Clent Smith, the predecessor in interest of the plaintiff in the present action, properly comes within the designation of “all persons unknown”,, the court had jurisdiction to determine any adverse claims which he may have had to the property involved in the action. Alice M. Smith and John W. Smith, his successors in interest, are, therefore, bound by any valid judgment obtained against Clent Smith as an unknown person.

The first question for determination, therefore, is whether or not Clent Smith, the predecessor in interest of the plaintiff in the present action, was an “unknown person” defendant within the meaning of our statutes, and whether jurisdiction was obtained over him in said action. The judgment in said action was recorded in the office of the register of deeds of Mount-rail County, North Dakota, the same date as it was obtained.

It will be noted that the action of Edward Will, plaintiff, against Axel Pearson, et al., was commenced by the issuance of a summons on the 19th day of April, 1944, and completed by entry of judgment and the recording thereof on August 31, 1944.

The evidence discloses that the Federal Land Bank of St. Paul obtained a sheriff’s deed to the premises involved in this action on the 22nd day of March 1930 and filed for record on the 17th day of April, 1930, in the office of the register of deeds of Mount-rail County, North Dakota.

The plaintiff, John W. Smith, claims his source of title from Clent Smith. Clent Smith obtained a quitclaim deed from the Federal Land Bank of St. Paul, Minnesota, dated June 28, 1937. This deed was filed for record in the office of the register of deeds, Mountrail County, North Dakota, on February 20, 1945, or five months and twenty days after the conclusion of the action by Edward Will quieting title to the land involved in this action.

Clent Smith gave a quitclaim deed to Alice M. Smith, dated May 13, 1946, and filed June 28, 1946, in the office of the register of deeds, Mountrail County, North Dakota. Alice M. Smith gave a warranty deed to John W. Smith, the plaintiff in this action, on the 29th day of August, 1951, which was recorded in the office of the register of deeds, Mountrail County, North Dakota, on the 29th day of February, 1952.

Thus the record title did not disclose any interest in the plaintiff, John W. Smith, or his predecessors in interest, Clent Smith, his father, nor Alice M. Smith, his mother, until after the quiet title action by Edward Will against Axel Pearson had been completed. The deed of Alice M. Smith' from her husband, Clent Smith, appeared of record one year, nine months and twenty-seven days after the completion of the quiet title action of Edward Will against Axel Pearson et al. The deed from Alice M. Smith to John W. Smith appears of record less than a month prior to the institution of the present action.

The trial court found as a fact that the parents of John W. Smith, Clent Smith and Alice M. Smith, were not residents of the State of North Dakota 'between the 22nd and 26th day of April, 1944; that they had moved to Big Fork, Montana, in 1940, where they remained, except for occasional visits to White Earth, North Dakota. It further found as a fact that the land in controversy was idle when sold by Mount-rail County to Edward Will; that Edward Will was in possession of the land involved in this action at the time he brought his action to quiet title. It further found that at the time that Edward Will purchased the land it was not fenced or improved, nor was there anything to indicate any farming activity, or that anyone claimed any right to the ownership or the use thereof. It further found that the interest of Clent Smith and his successors in interest, to wit, Alice M. Smith and John W. Smith, if any, was neither disclosed by the public records nor through acts of possession, and that facts did not exist which would put a prudent inquirer on notice with reasonable means of ascertaining the identity or whereabouts of either Clent Smith or the plaintiffs (referring apparently to John W. Smith and Alice M. Smith, who at the time of this action was deceased.) The evidence in this case amply bears out these findings of the trial court.

The plaintiff himself testified that Charles Baumgart, who had been both a tenant and a hired hand of Clent Smith, farmed the land for the last time, he thought, in 1942. The defendant Edward Will testified that when he bought the land it was covered with weeds. There had been a house on the land, but it was moved off the premises sometime prior to 1941. The plaintiff was uncertain as to the exact date, but he was certain that it was prior to 1941! The plaintiff admitted that he never said anything to Mr. Will about owning the land. The plaintiff knew Edward Will and admitted that he never discussed having any claim o.r interest in this land with him. Edward Will testified that he was acquainted with Clent Smith during his lifetime, also with his wife, and with the son, John W. Smith; that during the entire time from September 1943 up to the time of the litigation in the case at bar, neither Clent Smith, Alice M. Smith, nor John W. Smith, told him that they had an interest in this land. He .further testified that the first time he knew that the Smiths claimed any interest in the land was when the “papers” in this action, the summons and complaint, were served on him. Edward Will had dealings with Clent Smith in 1944 and at that time he made no claim to this land.

The trial court concluded as a matter of law that the quiet title action instituted by Edward Will against Axel Pearson adjudicated the adverse claims of Clent Smith and those who succeeded him to the title to the premises involved under the designation of “all unknown persons.” With that conclusion we agree.

A close examination of the record in the action of Edward Will against Axel Pearson, Civil No. 3600, maintained in the District Court of Mountrail County, discloses that it was conducted in strict compliance with the requirements of Chapter 32-17, NDRC 1943.

The factual situation here is' somewhat different than in the case of Bartell v. Morken, N.D., 65 N.W.2d 270. But, insofar as that case deals with unknown persons, it determines the law applicable here. That case was also a quiet title action. Niels C. Larson of Viborg, South Dakota, became the owner of the premises involved in that action by a warranty deed dated December 31, 1929. On December 8, 1931, the property was sold to Mountrail County for nonpayment of taxes for the year 1930. On May 21, 1938, tax deed was issued to Mountrail County. This tax deed was void for various reasons. Mountrail County went into possession of the land and leased it to Selmer Morken. On March 4, 1946, the county executed and delivered a deed to Morken who continued in possession. On May 4, 1951, Selmer Morken instituted an action to determine adverse .claims to the property against:

“Niels C. Larsen, his unknown heirs or devisees if deceased; and all other persons unknown claiming estate or interest- in or lien or encumbrance upon the property described in the complaint herein, defendants.”

On August 8, 1951, judgment was entered in that action in the district court of Mount-rail County determining that Selmer Mor-ken was the owner in fee simple of the premises involved and further determining that the interests of all defendants were quieted and that they were forever debarred from any and all claims of right or title to the said premises, or lien of encumbrance upon said premises.

Niels C. Larsen died May 7, 1931. Bertha L. Bartell, the plaintiff in the action, filed an affidavit showing that she and her brother were the children of Niels C. Larsen, deceased. The purpose of the affidavit was to establish that Bertha L. Bartell was an heir of the record title owner, Niels C. Larsen, and therefore entitled to maintain the action. The main issue in that case was whether the plaintiff could maintain a collateral attack upon the former judgment and whether valid service was obtained on the heirs of Niels C. Larsen as unknown defendants.

This court determined in an opinion written by Chief Justice Morris, that the action maintained by Selmer Morken and concluded on August 8, 1951, was binding on the plaintiff, Bertha L. Bartell and was a bar to the relief that she sought in the action, and further, “That judgment determined defendant Selmer Morken to be the owner of the land and is binding on' the court in this action.” This court thus found that Bertha L. Bartell was properly served in the action as an unknown person; that the court had jurisdiction ; that the action maintained by her was barred by the quiet title action of Selmer Morken.

The present action of John W. Smith to determine adverse claims against Edward Will and others is a collateral attack upon the former judgment of Edward Will against Axel Pearson et al. Bartell v. Morken supra, and authorities therein cited. It was conducted in strict compliance with the requirements of Chapter 32-17, NDRC 1943, and the affidavit for publication of the summons conforms to all the requisites of Section 32-1707, NDRC 1943. Jurisdiction, therefore, was obtained over Clent Smith as an “unknown person” which adjudicated his rights in the property involved in the action at bar. Alice M. Smith and John W. Smith, his successors in interest, who obtained deed through him after said action had been concluded, are bound by that judgment.

The sheriff’s return of defendants not found goes beyond the requirements of Subsection 4, Section 28-0620, NDRC 1943, in that it refers to inquiries made by plaintiff’s attorney. While the recitals are not required by statute, they show the diligence and the effort to ascertain the rights of all interested parties in the land prior to the institution of the action of Edward Will against Axel Pearson and others, case number 3600.

When Edward Will maintained his action to' quiet title against Axel Pearson and others, the property was not fenced or improved. There was no activity on or connected with the land. The evidence amply bears out that he had no knowledge of any claim of ownership by Clent Smith, his wife, or John W. Smith. The interests of the plaintiff were neither disclosed by the public record nor by acts of possession, and no facts in this record are shown which would put a prudent inquirer on notice with reasonable means of ascertaining that Clent Smith, Alice M. Smith, or the plaintiff, John W. Smith, had any interest in the property involved. Clent Smith was an “unknown person” in the action to quiet title instituted by Edward Will to the premises involved in this action. Stewart v. Berg, N.D., 65 N.W.2d 621.

In view of our determination that the quiet title action of Edward Will against Axel Pearson et al. was effective to exclude any interest of Clent Smith in the premises involved in this action and is binding on his successors, it becomes unnecessary to determine whether there were any defects in the tax title procedure leading* up to the tax deed to Mountrail County. These defects, if any, have been adjudicated in the Will quiet title action. The determination of the trial court in that action is binding on the court in this action.

The judgment appealed from is affirmed.

BURKE, C. J., and GRIMSON, MORRIS and SATHRE, JJ., concur.

On Petition for Rehearing.

The appellant has filed a petition for rehearing in which he indicates that this court overlooked the law pronounced in the case of Roberts v. Enderlin Investment Co., 21 N.D. 594, 600, 132 N.W. 145. We carefully examined the above case referred to before the opinion was prepared, but did not deem it applicable to the facts involved in the case at bar.

The Roberts case shows that the affidavit for publication of the summons was filed on August 12, 1908; that the first publication of the summons was on the 14th day of August, and the sheriff’s return was made and filed on the 25th day of August, thirteen days after the affidavit was filed and eleven days after the first publication of the summons, and after the summons had been twice published. The summons was only published four times after the sheriff’s return was filed. The court held in that case that this was not a sufficient compliance with the statute to confer jurisdiction on the court to enter any judgment against the defendant in absence of any appearance by him in the action. It further held that by the great weight of authority, the rule is that statutes providing for service of summons in any other manner than by personal service must be complied with and strictly followed to render effective an attempted service of summons by publication.

In the case at bar the facts show that the summons and complaint came into the hands of the sheriff for service on the 22nd day of April 1944; that the' sheriff made his return on the 26th day of April 1944; that the affidavit for service of summons by' publication was signed by the plaintiff’s attorney on that date and that the summons, complaint, sheriff’s return and affidavit for service by publication were all filed on the 26th day of April 1944. There was strict compliance with the' requirements of the 'statute.' ■

■ The appellant refers to the following statement made in the Roberts case:

“The statute requires, in such cases, that the inquiry by the sheriff for the purpose of serving the summons be made prior to the making and filing of the affidavit.”

It is interesting to note that the above quoted statement from the North Dakota Report does not appear in the same language in the decision as reported in 132 N.W. 145. At page 147 thereof, for some unknown reason, the official report of the decision as contained in the North Dakota Report was changed to read:

“ * * * he (the sheriff) is unable to make personal service thereof, requires that such return of the sheriff, for the purpose of serving the summons, be made prior to the making and filing of the affidavit.” (Emphasis supplied.)

We know of no statute that requires that the inquiry of the sheriff for the purpose of making and serving the summons be made prior to the making of the affidavit.

The pertinent question involved is simply what does Section 28^0620(4) require? It requires that when an affidavit for publication of the summons shows that personal service cannot be had upon a defendant in this state to the best knowledge, information, and belief of the person making the affidavit, such affidavit must be accompanied by a return of the sheriff of the county in which the action is brought stating that after diligent inquiry for the purpose of serving such summons, he is unable to make personal service thereof upon such defendant. This return must be filed with the affidavit. When this has been done the requirements of the statute have been met. The sheriff’s return, of necessity, must be made prior to the filing of the affidavit since the statute requires that the affidavit be accompanied by the return. The presumption would be that the inquiry was made prior to the filing of the affidavit when, as here, the facts show that the sheriff, had the summons and complaint in his possession for four days prior to making his return. Strict compliance with all the statutory requirements invoked the jurisdiction of the court in the action of Edward' Will to quiet title against Axel Pearson, et-al. *

The judgment entered in that action cannot be collaterally attacked in this action.

The petition for rehearing is denied.

BURKE, C. J., and JOHNSON/ GRIM-SON, MORRIS and SATHRE, JJ., concur.


source: Caselaw Access Project

author: iN'ORRIS, Judge.

license: Public Domain

text:
    The BOARD OF EDUCATION OF CITY OF MINOT of the State of North Dakota, Plaintiff and Respondent, v. PARK DISTRICT OF CITY OF MINOT, Clara Kluver, Effie Conan, Harvey Johnson, Rollie Johnson, George Johnson, Lyle Johnson, Florence E. McPeek, Frank W. Roach, Annie Roach, Lucille Margaret Roach, Gladys Roach Cleary, Clarence P. Roach, Joseph H. Roach, Eleanor Roach Moen, Bertha Rogers, Henry Storbeck, Alma Storbeck, Minot Federal Savings & Loan Association, Clifford Odland and Josie D. Odiand, Kate Faris, William D. Stevens, Marshall E. McGovern, Roy Reimer and Gladys F. Reimer, Thomas J. Timko and Florence J. Timko, George S. Klovstad and Celia Klovstad, Clair L. Ingalls and Dorothy M. Ingalls, Lillian Dasher, A. C. Russell and Ellen Russell, Elliott Film Corporation, Katherine W. Lefebvre and William V. Lefebvre, John B. Simonieg, and Rose Simonieg, Stella M, Aaby and Alvin G. Aaby, Anna Knudtson, also known as Annie Knudtson, Theodore O. Lee, Alice M. Elder and James R. Elder, Gustav Rothgarn and Tillie Rothgarn, Alan Lee, Robert Sullivan and Violet Sullivan, Hugo F. Fursteneau and Stella M. Fursteneau, also known as Hugo F. Furstenau and Stella M. Furstenau, Gordon F. Kuist and Eunice C. Kulst, Sam Mentis, Mary Margaret Davis, John C. Burkhartsmeier and LaVaughn M. Burkhartsmeier, Harvey J. Johnson and Elisa A. Johnson, Frank Pettys and Nora Pettys, Newell A. Sherwood and Jeanette Sherwood, Laura M. Ralston and Leslie Ralston, Bernhart M. Mueller, John N. Ellison and Sophie G. Ellison, Fred R. Erenfeld and Eliska Erenfeld, Jennie Thompson, Hannah Effertz, Mary H. McKoane, Peter Olson and Emma Olson, Henry K. Milkey and Hazel Milkey, Edith Johanna Peterson, Union National Bank, Minot, Ruth Barnes, E. V. Rosenberger and Neva Rosenberger, Provident Life Insurance Company, Arthur F. Anderson and Beda S. Anderson, Kenneth A. Schultz and Yvonne L. Schultz, Charles L. Northrop and Minnie Northrop, L. G. Kruse and Orpha Kruse, Leo J. Flammang and Hazel M. Flammang, Samuel J. Stubbs, Otto Engen, Earl A. Jordahl and Gladys M. Jordahl, First National Bank, Minot, Bertha Hill, John A. Moldstad, A. L. Lan-dis, Ingel C. Smette, Juliana Schmalz, and all other persons unknown claiming any estate or interest in or lien or encumbrance on the property described in the complaint, Defendants and Appellants.
    No. 7515.
    Supreme Court of North Dakota.
    June 6, 1955.
    Rehearing Denied June 30, 1955.

      McGee & Van Sickle, Minot, for plaintiff and respondent.

      Bosard & McCutcheon, Minot, for defendants and appellants.
   iN'ORRIS, Judge.

This is a civil action brought by the Board of Education 'of the City of Minot,organized as a body corporate pursuant to the provisions of Section 15-27, NDRC 1943, against the Park District of the City of Minot, certain named individual defendants, and all other persons unknown claiming any estate or- interest in or lien or encumbrance upon the property described in the complaint, which is Lot 4, Block 8 of the Original Plat of North Minot designated as Lincoln Park and dedicated to the public use of the inhabitants of the City of Minot. The park consists of 12.91 acres. The plaintiff seeks to obtain fee simple title to this land for public school purposes through the .exercise of its power of eminent domain under the provisions of Chapter 32-15, NDRC 1943. The park district owns the property subject to the reversionary interests of certain individuals who are named as parties defendant.

The defendant park district demurred to the complaint on two grounds — first,' that the plaintiff has not legal capacity tó bring the action; and second, that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled. The park district, answered by a general denial and an admission of certain more formal parts of the complaint. It also made specific allegations questioning the power of the plaintiff to exercise the right of eminent domain and denied that the public use to which the plaintiff sought to apply the property was more necessary than the public use to which the property was being put by the park board. It also alleged that the property was of the value of $100,000. A number of individual defendants also answered challenging the power of the plaintiff to take the property by eminent domain and further alleging that if the property is to be condemned and taken for school purposes certain property owned by various individual answering defendants would be damaged and depreciated in the sum of $500 per lot. Trial was had to the court without a jury upon all issues except that of damages.The court made findings of fact from which he drew the following conclusions of law: ■

“1. That the plaintiff, the Board of Education of the City of Minot is empowered and entitled to the exercise of the right of eminent domain to acquire Lot 4, Block 8; North Minot from the Park District of the City of ■Minot for use as a site for school facilities.
“2. Thát the use of Lot 4, Block 8; North Minot, by the Board of Education of the City of Minot, for the construction of a junior high school is a use authorized by law.
“3. That the taking of Lot 4, Block 8; North Minot and of the whole thereof is necessary to its usé as a site for a new junior high school.
“4. That the public use of Lot 4, ■Block-8; -North Minot and the whole thereof as a site for the construction of a junior high school is a more necessary public use than'its use by the Park District of the City of Minot as a public park.
“5. That the defendants herein are entitled to a determination by a jury of the question of damages herein.
“6. That upon determination of the question of damages, a judgment of' appropriation and condemnation in form provided by law should be made -and entered herein.” ■

The defendants demanded a trial by jury on the issue of damages. A jury was drawn pursuant to order of the court and after a trial on the issue of damages the jury assessed' compensation and damages payable to the park district as compensation for land taken in the sum of $25,820. It found no damages for property not taken but claimed to have been injuriously affected. Judgment was entered pursuant-to-the conclusions of law of the court and the verdict of the jury condemning the land for the use of the plaintiff and awarding the park district $25,820 as compensation for its taking, together with costs and disbursements. The defendants appealed and demanded a trial de novo and also served and filed specifications of error including the assignment that the court erred in overruling the defendants’ demurrer.

Counsel for the defendants and appellants earnestly and ably argues that Chapter 32-15, NDRC 1943, is primarily procedural and that, though it sets forth the purposes for which eminent domain may be exercised, it is not a grant of power and that the power to exercise the right of eminent domain must be found in other statutes directly granting it. It is then asserted that the legislature has never granted to special school districts the power to exercise the right of eminent domain. These contentions require a meticulous study of statutes pertaining to eminent domain and the acquisition of real property by school districts.

Statutes conferring the power of eminent domain will be strictly construed. Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 867. But if a statute confers such power it will be liberally and reasonably construed so as to make the purpose effective. Petersburg School District v. Peterson, 14 N.D. 344, 103 N.W. 756. The power of eminent domain may be conferred by the legislature either expressly or by necessary statutory implication. San Joaquin & Kings River Canal & Irrigation Co. v. Stevinson, 164 Cal. 221, 128 P. 924; People v. Superior Court, 10 Cal.2d 288, 73 P.2d 1221; Chicago, Burlington & Quincy Railroad Co. v. Cavanagh, 278 Ill. 609, 116 N.E. 128; School District of Columbia v. Jones, 229 Mo. 510, 129 S.W. 705; McQuillin, Municipal Corporations, 3d Ed., Section 32.12; 29 C.J.S., Eminent Domain, § 22; Nichols on Eminent Domain, 3d Ed., Section 3.222(3).

A special school district “shall possess all the powers and shall perform all the duties usual to corporations for public purposes or conferred upon it by law. Under that name, it may sue and be sued, enter into contracts, and convey such real and personal property as shall come into its possession by will or otherwise.” Section 15-2702, NDRC 1943. Among the powers conferred upon the board of education of a special school district we find the following set forth in Section 15-2908, NDRC 1943:

“2. To establish and maintain such schools in its district as it shall deem requisite or expedient, and to change or discontinue the same; * * *
“4. To purchase, sell, exchange, and hire schoolhouses and rooms, lots, or sites for schoolhouses, and to fence and otherwise improve them as it deems proper; * *

Turning now to the statutes on eminent domain, we find that Section 32-1502, NDRC 1943, provides that:

“Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses: * * *
“3. Public buildings and grounds for the use of any county, city, park district, village, or school district; canals, aqueducts, flumes, ditches, or pipes for conducting water for the use of the inhabitants of any county, city, or village, or for draining any county, city, or village; raising the banks of streams, removing obstructions therefrom and widening, deepening, or straightening their channels; roads, streets, and alleys, and all other uses for the benefit of any county, city, park district, or village, or the inhabitants thereof, which may be authorized by the legislative assembly, but the mode of apportioning and collecting the costs of such improvement shall be such as may be provided in the statutes by which the same may be authorized; * *

Section 32-1503 sets forth the estates and rights in land subject to be taken for public use as follows:

“1. A fee simple, when taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams and permanent flooding occasioned thereby, or for an outlet for a flow or a place for the deposit of debris or tailings of a mine;
“2. An easement, when taken for any other use;
“3. The right of entry upon, and occupation of lands and the right to take therefrom such earth, gravel, stones, trees, and timber as may be, necessary for a public use.”

Section 32-1505 provides that before property can be taken it must appear:

“1. That the use to which it is to be applied is a use authorized by law,;
“2. That the taking is necessary to such use; and
“3. If already appropriated to some public use, that the public use to which. it is to be applied is a more necessary public use.”

In support of the argument that Section 32-1502, NDRC 1943, does not confer the power of eminent domain but merely states the public uses in behalf of which that power may be exercised and that the power has not been conferred upon special school districts, the defendants point out that Section 15-2609, NDRC 1943, specifically confers the power of eminent domain on common school districts. The defendants also cite Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 867, 869. That case does not support the defendants’ contention. But on the other hand it shows why the legislature may have deemed it necessary to specifically confer the power of eminent domain upon common school districts while it was not necessary to do so with respect to special school districts because of a difference in the estates authorized to be taken. . In that case the court held that .county commissioners did not have the power to take by eminent domain the fee simple title to land for the purpose of removing gravel therefrom. The decision was based upon paragraph 3 of ¡Section 8204, Compiled Laws of 1913, which is now Section 32-1503, NDRC 1943, quoted above. This paragraph provides .for the right of entry upon lands to take -gravel therefrom as may be necessary for public use. It appeared that the only use sought by the county commissioners was to take gravel and therefore “In the absence of such an express statute giving to the county commissioners the right to take land for the purpose of obtaining gravel for a highway, the right of eminent domain, when exercised for this purpose, can extend no further than to permit the taking of a right of entry and occupation for the purpose of removing the gravel therefrom” and thus the court denied the right of the county' commissioners to take fee simple title by eminent domain in that case. The reasoning of the opinion leads to the conclusion that the court would have sustained the right of the county to take the gravel had that been asked for but the county asked for a fee simple estate when it needed only the right, to take and remove gravel. The court says:

“The eminent domain statute outlines the purposes or uses for which the right of eminent domain may be exercised and the estates or rights in lands that are so subject to be taken. Section 8203, Supplement to the Compiled Laws of 1913 (chapter 153, Laws of 1915), among other purposes, authorizes the right to be exercised in behalf of roads, streets and alleys and all other public uses for the benefit of any county, incorporated city, village, or town, or the inhabitants thereof, which may be authorized by the Legislative Assembly (see paragraph 3).”

We think the reasoning in that case is sound and that where an estate or right in land, other than those provided for in Section 32-1503, NDRC 1943, is sought to be taken by eminent domain specific statutory authority therefor must appear.

If we turn to Section 15-2609, NDRC 1943, providing for the acquisition of schoolhouse sites by coirltnon school districts, we find :■

“If the owner of the real property refuses or neglects to convey the site, a site for a schoolhouse may be obtained by proceedings in eminent domain. If a school site so taken or otherwise acquired is not used for school purposes for three successive years, and if no schoolhouse or other builds ing is located thereon, the site shall revert to the original owner or his assigns upon payment to the district of the sum originally paid by the district or such lesser sum as the board may fix. If the owner or his assigns shall neglect or refuse to make the payment within one year after demand therefor by the board, the site may be sold by the board.”

Thus a common school district does not acquire an absolute fee simple title to a schoolhouse site. It is subject to reversion to the original owner under the conditions set forth in the statute. Such an estate is not provided for by Section 32-1503, NDRC 1943, and the legislature no doubt felt it necessary to specifically provide that the limited estate to be acquired by a common school district be obtained by eminent domain.

The statute pertaining to the acquisition of schoolhouse sites by a special school district, Section 15-2908, NDRC 1943, contains no provision for reversion. The special district acquires a fee simple title to its schoolhouse sites which is an estate authorized to be taken under Section 32-1503, NDRC 1943. This section must be construed in connection with paragraph 3 of Section 32-1502 heretofore quoted. When these sections are considered together they authorize a school district when it has not been- otherwise provided by statute — as has been done with respect to common school districts — to acquire a fee simple title to a site and grounds for a schoolhouse by eminent domain. It should be noted that paragraph 3 does more than merely enumerate purposes, as do some of the other paragraphs of the same section. It sets forth not only the purpose-or use for which the property may be taken but it enumerates the public corporations or subdivisions for whose use the property may be acquired.

The defendants have carefully briefed the statutes pertaining to the growth of the power of eminent domain in this state and have pointed out a number of specific instances where the legislature has conferred the power of eminent domain either for public purposes or in behalf of public corporations or organizations. Some of these organizations are of recent creation. Some of the purposes have arisen from new needs resulting from the development of our state .and its subdivisions. That these would from time to time arise and would require the enactment of further laws was contemplated by the legislative assembly of 1895 in which our .law of eminent domain originated. Chapter 35, § 5955 et seq., Revised Codes of North Dakota 1895. Paragraph 3, above discussed, still remains in substantially its original form. It not only provides for certain specific uses but also provides for “all other uses for the benefit of any county, city, park district, or village, or the inhabitants thereof, which may be authorized by the legislative assembly, * * *.” As other uses arose other legislation was enacted extending the power of eminent domain. We are unimpressed with the argument that subsequent legislation indicates that paragraph 3 of Section 32-1502 when considered with Section 32-1503, NDRC 1943, confers no power of eminent domain on the public corporations, municipalities and subdivisions therein enumerated and that we must look elsewhere for statutes authorizing the exercise of the power when they seek to acquire property for the uses enumerated in paragraph 3.

In Ashby v. City of Juneau, 9 Cir., 174 F. 737, 738, the court considered a paragraph of the eminent domain statute of Alaska containing substantially the same wording as our paragraph 3 of Section 32-1502, NDRC 1943, and held that the words “roads, streets, and alleys”, Carter’s Ann.Civ.Code, c. 22, § 204(3), were used independently as being within the public uses specified which were made the subjects of condemnation by municipalities without further legislation of congress. The court went on to say:

“We are also of the opinion that the right of the municipality to proceed in eminent domain is conferred, when we consider the statute just quoted in connection with the express grant of power to municipalities to provide for the location, construction, and maintenance of the necessary streets, alleys, crossings, sidewalks, sewers, and wharves, given in section 4 of the act of Congress amending and codifying the laws relating to municipal corporations in Alaska.”

The importance of this last quotation as authority in the case before us becomes apparent when we consider that Section 15-2908, NDRC 1943, vests in the board of education of special school districts power to establish and maintain such schools in its district as it shall deem requisite or expedient and gives to the board the authority to purchase lots or sites for schoolhouses.

Mountrail County v. Wilson, 27 N.D. 277, 146 N.W. 531, 532, involved the power of the county to acquire by eminent domain a tract of land adjacent to an inadequate courthouse site which had already been obtained. Section 2406, Revised Codes of North Dakota 1905, vested the board of county commissioners with the power and authority “to purchase such land so adjoining said court house, without submitting such question to • a vote of the people, * * *.” The court held that this section “empowers the county to acquire, by condemnation proceedings, additional ground adjacent to an inadequate site to constitute an adequate and’ suitable site for county buildings, and this without authorization by a vote of the electorate of the county.”

In Board of Education of City of Holland v. Van Der Veen, 169 Mich. 470, 135 N.W. 241, it was held that a statute making the city a single school district and conferring upon it the usual- powers of corporations for public purposes and authorizing its board of education to designate and establish sites for - schoolhouses and “to purchase and procure the lands therefor”, Loc.Acts 1893, No. 271, art. 30, § 12, expressly conferred upon the board the power to condemn land for a school site.

See also People v. Superior Court, 10 Cal.2d 288, 73 P.2d 1221, and United States v. 2.74 Acres of Land in Williamson County, D.C., 32 F.Supp. 55. The foregoing statutes and decisions lead to the conclusion that a special school district has express statutory authority to acquire a school site and grounds by, eminent domain.

The defendant and appellant park district next challenges the judgment on the ground that the plaintiff has failed to show that a greater necessity exists for the úse of the land in question for school purposes than exists for the use of the land for park purposes. Paragraph 3 of Section 32-1505, NDRC 1943, provides that “If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.” must, appear before-the property can be taken by eminent domain. The question of greater necessity was properly tried to the court.

“If there is no express legislative provision, the relative importance of the two uses is to be determined by the court. If the later use is deemed by the court, under all the circumstances, to be more important than the earlier, the land is taken for the later use * * *.” In re Certain Land in Lawrence, D.C., 119 F. 453, 456:

The trial court wrote a memorandum opinion analyzing the evidence. He also made 'comprehensive findings of fact ini which he found that the proposed site is to be used for a junior high school; that it is centrally located with respect to pa-irons residing bo,th east and west of the site; that public utilities required for development are available; that the contour and terrain of the site are suitable for the erection of the proposed building; that the site is relatively free from hazards of main thoroughfare traffic and offensive industrial conditions; that the present junior high school.facilities are crowded; and that additional facilities are necessary.

The court further found as to the present use that the proposed site is not well developed for park purposes and shows substantially no permanent improvements of substantial value and that the use of the land for school purposes is a more necessary public use than its üse by the Minot park district as a park. The weight of the evidence supports the findings of the trial court in this respect. The park board argues that 'emphasis has been placed upon centralization of population and the distance of patrons from the school and that these are matters of convenience rather than necessity’ and that the case of the school district is based upon convenience which will not justify the taking in this instance. This case presents a clash of public uses, one as a school and' grounds, the other as a park. Either use is to a large extent based upon public convenience, not the convenience of the school district or the park district as legal entities. The Tecord clearly demonstrates that the convenience to the public arising out of the use of this land as a school site and .grounds exceeds the convenience to the public arising from the use as a park. The convenience to the public becomes a necessity for the board of education in establishing a junior high school and that use is more necessary than the use of the land as- a: park. This is the conclusion reached by the trial court and with that •conclusion we agree.

The next contention advanced by the park district-is that the board-of education grossly abused its discretion in proceeding to • condemn Lincoln Park for school purposes. It is urged that the area of the tract sought to be taken is in excess of that necessary for school use and it is further contended that a large portion of the tract will be put to the same use by the school district that it is now being used for by the park board. The evidence is conflicting as to the acreage necessary - for adequate school grounds. The park board contends that the maximum is five acres, while the board of education insists that the minimum is ten acres. The legislature has fixed the maximum amount for common schools at five acres. Section 15-2609, NDRC 1943. It has fixed no maximum amount that may be taken for a schoolhouse site by a special school district. Where the legislature has not fixed the extent of the area to be taken, it is left to the discretion of the school board and this discretion is not reviewable in the courts except where there has been gross abuse or manifest fraud. 18 Am.Jur., Eminent Domain, Section 109. We cannot agree with the park board that the use of an 'area by a school district as a school ground and athletic field is the same use as that of a public park. One is primarily for the use of the children attending the school, while the other is for the general use of the public. The time has long since passed when a school was a place devoted exclusively to mental training. The physical development of a child is as essential to his well-being as is his mental development. Many proper extracurricular activities of a school take place outside of the classrooms. The physical development of a child requires a suitable place for recreation and exercise. We see no abuse of discretion on the part of the board of education in acquiring 12.91 acres of land for a site and grounds for a junior high school.

The plaintiff offered in evidence a certified copy of the minutes of the meeting of the Minot board of education dated May 16, 1952, showing the passage of a resolution declaring the public necessity for the construction of additional school facilities and also setting forth the reasons why it was necessary for the board of education to acquire the property now in question for the construction of such facilities and directing the president of the board to proceed to employ the assistance advisable to acquire the property. Four of the five members of the board were present and adopted the resolution unanimously. Plaintiff also offered in evidence a certified copy of another resolution similar to the first directing the president of the board of education to proceed according to law to employ the assistance advisable to condemn and acquire the property. The meeting at which this resolution was adopted was held March 11, 1954, and was attended by all five members of the board who voted unanimously for the adoption of the resolution. At this meeting only two of the old members remained on the board, three new members having succeeded to board membership.

The certified copies of the minutes of both meetings were objected to on the ground that they are self-serving documents containing conclusions and opinion evidence and are incompetent, irrelevant, and immaterial and introduce statements of evidentiary matters' which are not the best evidence. The defendants and appellants now specify the admission of the exhibits as error. The basis of the condemnation proceedings was the action taken by the board of education. The record made by the board of their determination of necessity and the reasons upon which the action was based was admissible. The objections made were general. No specific parts of or statements contained in the exhibits were pointed out as being subject to objection. The trial was had before the court without a jury. Under all the circumstances the admission of the certified copies of the minutes was proper. No question was raised as to the sufficiency of the amount of the award made by the jury. The judgment appealed from is affirmed.

BURKE, C. J., and SATHRE, JOHNSON, and GRIMSON, JJ., concur.