Barr v. Barnes County Bd. of County Com'rs

• Decision Date: 09 February 1972
• Docket Number: No. 8755,8755
• Citation: 194 N.W.2d 744
• Parties: Kelly W. BARR et al., Plaintiffs and Appellants, v. BARNES COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 744

194 N.W.2d 744

Kelly W. BARR et al., Plaintiffs and Appellants, v. BARNES COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant and Respondent.

Civ. No. 8755.

Supreme Court of North Dakota.

Feb. 9, 1972.

Syllabus by the Court

1. An assignment of error challenging the trial court's conclusion of law under the facts as found raises the question of the sufficiency of the findings to support the court's conclusion, and necessitates a review of the evidence for this purpose only.

2. This court upon appeal will not disturb a trial court's conclusions of law, where the conclusions are not wholly inconsistent with the findings made, and where upon review of the evidence it is found that additional findings based on unrefuted evidence could have been made to more fully support the court's conclusions.

3. Where the evidence and findings of fact based on such evidence show that a lake, pond or slough impounds waters gathered therein and drained from an area comprising 80 acres or more, draining of such lake, pond or slough may only be accomplished under the provisions of Section 61--01--22, North Dakota Century Code.

4. Where a person, private or public corporation drains a lake, pond or slough, in violation of Section 61--01--22, and the waters drained threaten to cause injury to downstream property owners, it is an abuse of discretion by the trial court to deny an injunction to enjoin such person or corporation from continuing the drain.

Nilles, Hansen, Selbo, Magill & Davies, Ltd., Fargo, for plaintiffs and appellants.

John T. Paulson, State's Atty., for defendant and respondent.

ADAM GEFREH, District Judge.

The plaintiffs appeal from a judgment entered in Barnes County District Court, dated March 5, 1971, in which the court granted the plaintiffs damages in the sum of five hundred dollars and denied the injunctive relief prayed for in the complaint.

The plaintiffs in their appeal have stated the following specifications of error:

1. The trial court erred in limiting the plaintiffs' damages to $500.00, the findings of fact entered by the court having stated that there were 203 acres of the plaintiffs' land that were flooded by reason of the defendant's wrongful act and that the reasonable rental value of such land was $12.00 per acre.

2. The court erred in refusing to grant injunctional relief.

The plaintiffs contend that the amount of damages awarded is inconsistent with the court's own findings of fact and therefore the award is erroneous. The trial court on this issue made the following findings of fact:

XV.

That the land of the plaintiffs was to be farmed in 1970 since it was no longer in the 'soil bank'. The plaintiffs had bought the land subject to a farm lease, under the terms of which the tenant was to farm the said land and retain 70% Of the revenue and the plaintiffs 30% Of the revenue. There are approximately 322 tillable acres on the three-quarters according to the United States Department of Agriculture records.

XVI.

That in the spring of 1970, water again came through the ditch at Goose Lake and therefore onto the land of the plaintiffs in a quantity and velocity much greater than was accustomed to come in a state of nature. As a result, 163 acres could not be planted on the plaintiffs' land that year due to the continued wetness of the ground. The proximate cause of the flooding of the plaintiffs' land was the digging of the ditch by the defendant at Goose Lake but for the wet conditions that resulted, the plaintiffs could also have broken out another 40 acres on the land which had previously not been farmed.

XVIII.

That the reasonable rental value of the plaintiffs' agricultural lands is $12.00 per acre.

Pursuant to these findings the court entered the following conclusion of law:

V.

That the negligent creation of the unlawful ditch by the defendant was the proximate cause of the plaintiffs' damages to their land, said damages being assessed at the sum of $500.00, which amount would compensate the plaintiffs for their 30% Share of the farm income they were entitled to under the farm lease.

The plaintiffs now contend that since the court found in its findings of fact that approximately 203 acres of land was flooded, and that the reasonable rental value of their agricultural land was found to be $12.00 per acre, the damages should have been $2,436.00 rather than $500.00. The plaintiffs further claim that the court erroneously used the farm lease as a basis for allocating 30% Of the damages to the plaintiffs rather than 100% Of the damages to which they are entitled.

If we were to accept the findings of fact as stated, we could easily agree that the court may have erred in its conclusion of law. The findings of fact were prepared for the court by counsel for the plaintiffs. The defendant did not object to the findings and apparently the court assumed that the plaintiffs were satisfied withe the findings and had no reason for making additional findings. However, since the plaintiffs are now attacking the trial court's conclusions of law based on the findings, it is necessary for this court to examine the sufficiency of the findings made to determine whether they support the court's conclusion on damages. Although the plaintiffs have not demanded a trial de novo in their appeal and have only appealed on specifications of error, we find it necessary to review the evidence as it applies to the findings and conclusions of law in order to determine whether the court erred when it concluded that the plaintiffs have suffered damages in the sum of only $500.00.

In reviewing the evidence for this purpose we find that additional findings of fact should have been included in the court's findings of fact, such as a finding that the tenant who farmed this land in 1969 plowed up only about 250 acres of crop land on these three-quarters of land during the summer or fall of 1968 of which he only seeded about 200 acres in 1969, that being the amount allowed under the ASC (Agricultural Stabilization and Conservation Service) program; that the tenant had signed up to participate under the ASC program for 1970 and under the program in effect for 1970 was only allowed to crop 203.9 acres under minimum participation (wheat program only) and would have been allowed only 148.2 acres under maximum participation (wheat and feed program); that the tenant had agreed to only minimum participation in 1970. The facts further show that the tenant in 1970 had actually seeded 152.7 acres to crops; and that the plaintiffs' share of the ASC payment amounted to $412.00. The testimony also shows that had the tenant signed up for maximum participation in the ASC program, 55.7 acres would have been placed in the feed program for which the Federal Government would have paid $18.61 per acre and the plaintiffs would have been entitled to 30% Of this payment under their farm lease with the tenant. According to testimony by the ASC director, all the flooded land qualified for either conserving or diverted acres in 1970. After considering these additional findings that could have been made, since the testimony was unrefuted, the court could have concluded that the plaintiffs suffered the loss from either 30% Of the net crop share from approximately 50 acres that could have been planted under minimum participation under the ASC program, or 30% Of the 55.7 acres at $18.61 per acre under maximum participation.

There was no evidence in the record at all concerning the landlord's proceeds for 1970 under the farm lease, and no evidence that the average county cash rental of $12.00 per acre was applicable to the plaintiffs' land. Even if we were to assume that the net proceeds of the landlord's 30% Share under the farm lease for 1970 would have been equivalent to the cash rental value of $12.00 per acre, the landlord's income on approximately 50 additional acres that could have been seeded in 1970 would only have amounted to $600.00. If the tenant had decided to sign up for maximum ASC participation in 1970, the additional income would have been only $310.97 to which the plaintiffs would have been entitled. It is important to note that the trial court's conclusion was not that the plaintiffs were entitled to 30% Of 203 acres at $12.00 per acre, but rather, 'the sum of $500.00, which amount would compensate the plaintiffs for their 30% Share of the farm income they were entitled to under the farm lease.'

Under these facts we conclude that the trial court's award of $500.00 is well within the evidence, and not inconsistent with the findings made by the court. This court upon appeal will not disturb a trial court's conclusions of law where the conclusions are not wholly inconsistent with findings made, and where upon review of the evidence it is found that additional findings based on unrefuted evidence could have been made to more fully support the court's conclusions.

Did the court err in denying injunctional relief? The findings made by the court on this point are as follows:

IV.

That before constructing any drainage ditch, the Barnes County Highway Engineer circulated a petition in the general vicinity of Goose Lake, said petition requesting that the intersection be cleared of water. Said petition, however, was not circulated in accordance with the drainage law, Chapter 61--21 of the North Dakota Century Code and there were no further proceedings to establish a legal drain under the aforesaid law.

V.

That before constructing the drain, there was no coordination between any other townships over which the water would pass and there were no proceedings instituted by the defendant under Section...