The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1927-04-27
PAGE 81
village is vested with power IL
terminc whether there exists a
lie necessity for establishing. la

|village is, vested with power tA
terminc whether there exists
lie necessity for establishing, layh
out and opening a street, or streetA
within the village, and such determA
ination is not subject to judicial
review; and when thereafter. it be-
comes necessary for the village to
maintain an action to condemn prop
erty for the purpose of establishing
and LAYING. out such a street.. or
streets, tho only question of neces-
sity for the court to, determine in
such action is whether the pafticu-
lar property sought to be condemned
Is necessary for such purpose.
60 The laws of North Dakota do
not require the board of trustees f
village to announce their determ-
ination that a public necessity ex-
lists for the establishment, laying
out or opening Of street in any
particular form; and the determin-
alton is sufficient as basis for an
action to condemn property for street
purposes whether evidenced by or
dinance or by resolution. I.
! CD Where the determination Of
the board of village trustees that
public necessity exists for the OPEN
ing OF street is evidenced by
| iSaViutipHs OF SuCn res
olution is not n jurisdictional pre-
requisite 60 the right of the village
To maintain a condemnation action.
tA) For reasons stated in the
oninion, it is held that the appellant
waived certain objections urged, on
this appeal. TO the original COM
PLANT and to allegations Of new
matter in the amended complaint.
| t3) Where Il village has organ
, lied as park district under the
provisions of sections 40Gi4 O7l, G. l..
1913. the board of village trustees
has no jurisdiction over the parks
of the village and. hence. such
board has no right to maintain an /.
action to condemn land for park pur-
poses
CO. In an action to condemn lands
Tor street purposes, it is held, for
reasons stated in the opinion. that
evidence as tn prices paid by ada
cent township for right of way for
highways within the township is in
admissible for the purpose Of PROV
! ing the value of the land in suit.
| Appeal from the district court Of
Adams county, Lembke, judge. De-
PENDANT Severt Hanson appeals from
Il judgment in favor of the plaintiff
and from an order denying n motion
for Judgment notwithstanding the
verdict or for Il new trial
! Reversed.
Opinion of the court by Christian
son, j.
+. NJ. Jackson, Hettingcr, N. d.,
and Emil Scow, Bowman, N. d., at
torncys for appellants
Paul W. Boehm. Hcttinger, NJ D.,
and Pat Morrison, Mobridge, S. D.,
1 pf m fnc
From Dunn County
George A. Yarger ana j NJ. Var
GER cospartncrs, doing business as
iarger Bros, plaintiffs and re-
Spondcnts.
! The Dakota Trust company. a cor
poration, defendant and appellant
| Syllabus;
CA Following the rule laid down
in Paysene VS.. Padgett Co.. ct al.
N. D.. it is held that the
hire Of horses and machinery furn-
! ished TO a road builder for use in
| the construction of a highway and
the labor claims for work done are
| recoverable from Il surety on bond
to protect m. person or. persons
! performing any labor or services or
/ the performance of the terms and
conditions OF this contract. against
any loss, and to well and truly pay
or cause to be paid the wages stipu-
lated and agreed to pay TO each and
every laoorer employed" and that the
contractor should well and truly
pay for any and AL material for
which payment undes the terms of
this contract is to be made.
t2) Gasoline for generating
power III said machinery, and oil for
| lubrieating the machinery are not
! recoverable under the terms of the
| aforesaid bond.
Appeal from the district court Of
Dunn county, Hon. +. T. Lembke.
judge. 81
Modified and affirmed. ~ =
Opinion of the court nv Burr J.
w. l.. Lorshbough of Fargo, N. D..
attorney for defendant and appel
liant
Lemke and Weaver Of counsel.
I. +. Murtha of Dickinson, N. d.,
and j. W. Sturgeon of Dickinson,
d., attorneys for plaintiffs and
respondents