Brace v. Steele County, 7193

• Decision Date: 23 March 1950
• Docket Number: No. 7193,7193
• Citation: 77 N.D. 276,42 N.W.2d 672
• Parties: BRACE v. STEELE COUNTY.
• Court: North Dakota Supreme Court

Page 672

42 N.W.2d 672

77 N.D. 276

BRACE v.STEELE COUNTY.

No. 7193.

Supreme Court of North Dakota.

March 23, 1950.

Rehearing Denied May 31, 1950.

Syllabus by the Court.

1.A temporary injunction is issued only to preserve the rights of the plaintiff during the pendency of the action and where the reasons for granting such injunction have ceased to exist and it is not likely that the acts which the temporary injunction sought to prohibit will be renewed the injunction should be dissolved.

2.Where in an action to enjoin the defendant from obstructing a watercourse a temporary injunction was issued at the commencement of the action enjoining the defendant from in any way obstructing the natural and free flowage of water in such watercourse and providing that any obstruction then constructed and maintained by the defendant be forthwith removed from said watercourse and drain, it is shown on an appeal to the supreme court from an order continuing such temporary injunction in force that the defendant has fully complied with the order appealed from and has removed the obstructions in the watercourse and there is no evidence of any intention on the part of the defendant to renew the acts sought to be enjoined, the temporary injunction should not be continued.

3.Where in an action to enjoin a county from obstructing a watercourse by means of a highway grade across the watercourse a restraining order was issued at the commencement of the action enjoining the defendant from in any way obstructing the natural and free flowage of water in such watercourse and providing that any obstruction then constructed and maintained by the defendant be forthwith removed from said watercourse and drain, and such restraining order is later continued in force during the pendency of the action by order of the court made after notice, and when on an appeal from the latter order it appears without dispute by the admission of the parties that the defendant has reconstructed the highway grade and installed adequate culverts so that the obstruction in the watercourse had been wholly removed, and as a consequence the controversy involved on appeal from such order has become moot the appellate court should make such order as is most consonant to justice, in view of the conditions and circumstances of the case, it should not dismiss the appeal but remand the cause to the trial court with directions to dissolve the temporary injunction.

Wallace E. Warner, Attorney General, P. O. Sathre, C. E. Brace, Assistant Attorneys General, and Albert C. Bakken, Jr., State's Attorney of Steele County Finley, for appellant.

Roy K. Redetzke, Fargo, for respondent.

CHRISTIANSON, Judge.

The plaintiff brought this action to enjoin the defendant county from obstructing a natural waterway and drain and thereby flooding and injuring certain lands owned by the plaintiff.The obstruction complained of consisted of a certain graded highway whih it is alleged obstructed the flow of water, and resulted in the flooding of the lands owned by the plaintiff.

The action was instituted by summons dated May 6, 1949.The complaint in the action was verified by the plaintiff on the same day and on that same day the plaintiff made an affidavit in support of an application for a temporary injunction.Thereafter the summons, the verified complaint, and plaintiff's affidavit were submitted to the judge of the said district court in support of an application for a temporary injunction and the judge issued an order citing the defendant to show cause before the said court at a place stated in such order on June 1, 1949, at 2 o'clock P.M. of that day, why the defendant, its officers, servants, agents and employees should not be enjoined during the pendency of the action or until the further order of the court from obstructing the natural watercourse and drainway mentioned in the complaint and why the obstruction so located and maintained by said defendant, its officers servants, agents, and employees on and across said natural watercourse and drainway should not be removed therefrom until the further order of the court; and, which said order to show cause further provided that until the further order of the courtthe defendant, its officers, servants, agents, and employees be restrained and enjoined from in any way obstructing the free flowage of water in said watercourse and that any obstruction there constructed and maintained by said defendant, its officers, servants, agents, and employees be forthwith removed from said watercourse and drain.

The summons, complaint, affidavit, and order to show cause were duly served upon the defendant county by service upon the chairman of the board of county commissioners of the county on May 13, 1949.The defendant interposed a general demurrer to the complaint, which demurrer was served upon the attorney for the plaintiff on May 27, 1949.At the time and place specified in the order to show cause the plaintiff appeared by his counsel and the defendant appeared by its counsel and made and filed a return to the order to show cause.Such return set forth certain objections to the order to show cause and prayed that the order to show cause be vacated and set aside.The return was verfied by one of the attorneys for the defendant.On October 20, 1949, the trial court made the following memorandum decision:

'This matter comes before the court on an order to show cause why a temporary restraining order issued by the court on May 9th, 1949, should not be continued during the pendency of the action.

'It appears from plaintiff's complaint and affidavit upon which the order was originally issued that defendant is obstructing a natural watercourse draining a considerable section of land lying immediately south of a road being built and maintained by the defendant.

'Plaintiff was not required to post security upon the issuance of the temporary order.Plaintiff should, therefore, post a personal bond with the clerk of this court in the sum of one thousand (1,000) dollars to indemnify the defendant as provided by section 32-0605 NDRC 1943.

'Upon such bond being posted this court will make its order continuing the temporary restraining order during the pendency of this action restraining defendant, its officers, servants, agents and employees from in any manner obstructing the natural watercourse and drainway located over, upon, and across the lands of the plaintiff, described in plaintiff's complaint, as being a watercourse and drain located and extending diagonally across the W 1/2 of Section 12, Township 144 North, Range 55 West, in Steele County, North Dakota, in a northeasterly direction and also extending across the northwest portion of the east half of said section, and against maintaining any obstruction in, on and across said natural watercourse and drainway, and that said defendant, its officers, servants, agents and employees be restrained and enjoined from in any way obstructing the natural and free flowage of water in said described watercourse.

'That the above entitled action be disposed of by trial of the merits at the first term of court in said county following the issuance of this order.'

On that same day the trial court made an order granting a temporary injunction.Such order recited that the matter came on to be heard before the court at the time specified in the order to show cause, that the parties appeared by their respective attorneys and that the court being fully advised in the premises and having read the files, record, and papers in the action, 'and good cause appearing therefor' ordered that during the pendency of the action or until the court shall otherwise order the temporary injunction theretofore made by the court bearing date May 9, 1949, be continued in full force and effect upon plaintiff's filing with the clerk of the district court a prescribed bond, which bond was thereafter filed.The defendant has appealed to this court from the order made October 20, 1949, granting the temporary injunction.

The obstruction of which the plaintiff complained and which he alleged blocked and obstructed the natural and free drainage of water in the watercourse and drainway as the same flows across plaintiff's land and caused plaintiff's lands to be flooded and damaged consisted of a certain highway grade constructed across the watercourse.The contention was that the highway as constructed obstructed and blocked the watercourse and drainway and caused water to accumulate and flood plaintiff's lands, and that no adequate culverts or bridges had been constructed so that the water could flow in the watercourse and drainway.In a former action brought by the State against the plaintiff Brace, State v. Brace, N.D., 36 N.W.2d 330, seeking to condemn much if not all of the lands involved in this action for a Wild Life Refuge this court referred to the highway and the culverts provided for the passage of the water under the highway as follows: 'A highway was later constructed along the section line extending eastward from the northeast corner of Section 12.A grade was filed in across a low marshy swale through which the drainage ditch had been dug.This resulted in filling in and blocking the ditch.Culverts were installed in the grade above the ground level and some distance above the bottom of the grade.This resulted in not only obstructing the flow of the drainage ditch but also to some extent the natural over-flow of water out of Fuller's Lake across the low-land to the northeast.'

In the concluding paragraph in appellant's brief on this appeal it is said:

'The county commissioners have, during the past summer, reconstructed the highway grade along the north side of plaintiff's land and had culverts installed adequate to carry the drainage of the watercourse described in plaintiff's complaint, and such culverts are at least as low as the bottom of the natural drainage of the area involved herein.

'Therefore,...