Supplement Opinion on Rehearing.
Evans, J.2. Schools and SCHOOL DISTRICTS : reversion of school grounds: proviso in deed: effect. In our original opinion, we confined our discussion to the provisions of Code Sec. 2816, and disposed of the case on the theory that such section was controlling of the rights of the parties, and that we need not discuss the effect of the provisions of the deed under which the defendant school district acquired its school property in 1877. Such deed contained the following proviso:
“Provided, however, if said land ever ceases to be used exclusively for schoolhouse lot, it shall revert back and title shall thereupon be vested in said Wm. Flickinger, his heirs or assigns, the same as if this deed and sale had not been made. ”
It is strenuously urged in the petition for rehearing that the provisions of the statute were superseded by the voluntary conveyance of the grantor to the district, and that the rights of the parties should be determined under the provisions of such deed, and not under the statute. This proposition is plausible upon its face and is entitled to consideration in the opinion.
The argument for the appellant on this feature of the case is that Sec. 2816 has no application to a voluntary conveyance of property, but only to eases where property has *47been acquired by condemnation proceedings; that there was an inherent right in the parties to the contract to make their own contract, and that such contract must necessarily govern their future relations.
The power, authority and method of acquiring schoolhouse sites by school districts are set forth in Code Secs. 2814, 2815 and 2816. These sections were in force in 1877, when the defendant acquired its schoolhouse site. By a perusal of these sections, it will be seen that the distinction between a voluntary conveyance by deed and an involuntary conveyance by' condemnation, which is urged by appellant, does not obtain in the contemplation of this statute. These sections (omitting matters not necessary for our present consideration) are as follows:
‘ ‘ Sec. 2814. Any school corporation may take and hold so much real estate as may be required for schoolhouse sites, for the location or construction thereon of sehoolhouses and the convenient use thereof, but not to exceed one acre, except in a city or incorporated town it may include one block exclusive of the street or highway, as the case may be, for any one site, unless by the owner’s consent, which site must be upon some public road already established or procured by the ■board of directors, and shall, except in cities, incorporated towns or villages, be at least forty rods from the. residence of any owner who objects to its being placed nearer, and not in any orchard, garden or public park.”
“Sec. 2815. If the owner of the real estate desired for a schoolhouse site, or a public road thereto, refuses or neglects to convey the same, or is unknown or cannot be found, the county superintendent of the proper county, upon the application. of either party in interest, shall appoint three disinterested referees .. .”
“Sec. 2816. In the case of non-user for school purposes for two years continuously of any real estate acquired for a schoolhouse site it shall revert, with improvements thereon, to the owner of the tract from which it was taken, upon re*48payment of the purchase price without interest, together with the value of the improvements, to be determined by arbitration, but during its use the owner of the right of reversion shall have no interest in or control over the premises.”
In the case at bar, there was a proviso in the deed from the original grantor, as above indicated, but its terms are not literally the same as the proviso of the statute. It is argued that these terms are more favorable to the district than are the terms of the statute, and that they should be construed in the light most favorable to the school district, on the theory that the law abhors a forfeiture.
We think it clear that the proviso in the deed should be construed in the light of the statute then existing. We see no inconsistency between the two. The proviso in the deed was a manifest attempt to save to the acquiescent grantor the benefit of the existing statute, which would concededly apply if the land were taken by condemnation. Sec. 2816 is not a forfeiture statute. It provides for rescission, rather than forfeiture, with full compensation .to the school district for the property and improvements to be thus taken. The cases cited by appellant, applying strict rules of construction to avoid a forfeiture, are not fairly applicable. The petition for rehearing must therefore be — Overruled.
Deemer, C. J., Weaver and Preston, JJ., concur.