Brekke v. City of Sioux Falls

• Decision Date: 07 March 1949
• Docket Number: 9003.
• Citation: 36 N.W.2d 406,72 S.D. 446
• Parties: BREKKE v. CITY OF SIOUX FALLS et al.
• Court: South Dakota Supreme Court

36 N.W.2d 406

72 S.D. 446

BREKKE v. CITY OF SIOUX FALLS et al.

No. 9003.

Supreme Court of South Dakota

March 7, 1949

Stordahl, May & Boe and Roy E. Willy, all of Sioux Falls, for appellant.

T J. Slattery, of St. Paul, Minn., H. F. Chapman and Roy D Burns, both of Sioux Falls, for interveners and respondents.

RUDOLPH Judge.

Ch. 290, Laws of 1939, providing for the abandonment of a drainage district and its works, is as follows:

'Section 1. Any intrastate drainage, drainage district and its works heretofore established or existing under the provisions of Sections 8458 to 8491 inclusive of the South Dakota Revised Code of 1919, as amended, or as revised in the South Dakota Code of 1939 at Sections 61.1001 to 61.1044 inclusive may be abandoned and abolished as herein provided.

'Section 2. Whenever a petition is filed with the county auditor giving the names and last known post office addresses of all the owners of all the lands affected by any such drainage and theretofore assessed for construction or maintenance of said drainage, and giving the legal description of each tract of land owned by the respective owners, praying for the abandonment of such drainage, drainage district and its works and stating the reasons therefor, signed by persons owning more than three-fourths of all of said lands; and accompanied by a bond with sufficient sureties tto be approved by the county auditor, conditioned to pay all expenses incurred if the abandonment and abolishment is not finally accomplished, or if accomplished, are not paid out of surplus funds belonging to the drainage; the county auditor shall present said petition to the board of county commissioners at its next meeting, at which meeting the board shall fix a time and place for hearing said petition, and shall cause notice of said hearing to be mailed to each owner of land named in said petition at the address stated therein, and shall cause said notice to be published once in the official newspapers of said county, all at least ten days before said hearing.

'Section 3. At such hearing any person interested may appear and be heard; and if after a full hearing the board of county commissioners shall find that such abandonment and abolishment is for the best interests of the owners of more than one-half of all the lands described in the petition, the petition shall be granted and the drainage, drainage district and its works shall be abandoned and abolished. Otherwise the petition shall be denied.

'Section 4. When any petition is granted the board of county commissioners shall provide by resolution that all expenses incurred in the proceedings shall be paid out of any surplus funds in the county treasury belonging to said drainage and drainage district and that the balance of such funds shall be paid to the owners of the respective tracts of land in proportion to the assessment contributions of the respective tracts, their present and former owners to said funds.

'Section 5. When the drainage and drainage district extends into more than one county the same petition shall be filed in each county and the boards of the respective counties shall act conjointly in fixing the time and place of hearing and in hearing and determining the petition and in ordering payments pursuant to Section 4 hereof, and notice of the hearing shall be mailed to each landowner as provided in Section 2 hereof and shall be published in the official newspapers of each county as provided in Section 2.

'Section 6. The abandonment and abolishment of any drainage, drainage district and its works, as herein provided, shall not affect the obligation or validity of any assessments theretofore made against any of the lands involved, nor the lien of such assessments, which shall be collected, enforced and applied in the same manner as if no abandonment or abolishment had taken place.

'Section 7. Any person deeming himself aggrieved by any order or determination of the board or boards of county commissioners may perfect an appeal to the Circuit Court of any county in which the drainage or portion thereof is located in the manner provided in Section 8469 of the South Dakota Code of 1919 or Section 61.1013 of the South Dakota Code of 1939 and the Circuit Court shall hear and determine the matter de novo.'

Purporting to act under the provisions of the above law, petitioners filed with the county commissioners of Minnehaha County on March 19, 1945, a petition stating they owned more than three-fourths of all the lands affected by Minnehaha County drainage ditch No. 1 and 2 and asked for the abandonment of such drainage district and its works. Attached to the petition and made a part thereof is a list alleged in the petition as giving the names and last known post office address of all of the owners of all of the lands affected by such drainage and theretofore assessed for its construction or maintenance. This list attached and made a part of the petition sets forth the acreage of each tract involved with the exception of the acreage of lots and blocks located principally in the city of Sioux Falls. The petition, together with the attached list made a part thereof, discloses that with the exception of the lots and blocks in Sioux Falls, there were 15726.61 acres affected by the drainage and theretofore assessed for its construction or maintenance. According to the acreage as set forth in the petition and the attached list the petition is signed by purported owners of 11862.41 acres. Following the filing of the petition the county commissioners failed or neglected to fix a time for hearing upon the petition and thereafter several of the petitioners proceeded in circuit court in mandamus to compel the commissioners to fix a time for hearing. Before the return date in the mandamus proceeding the commissioners did fix a day for hearing on the petition and gave notice thereof. Thereafter and before the time fixed for hearing on the petition the respondents in this proceeding, the City of Sioux Falls and the Great Northern Railway Company, had issued by the circuit court of Minnehaha County an alternative writ of prohibition which prohibited the holding of the hearing upon the petition. The question raised in the prohibition proceeding was the constitutionality of Ch. 290, Laws of 1939, which was finally determined by this court in the case of Great Northern Railway Company v. Graff, S.D., 28 N.W.2d 77. Following the decision in the prohibition action the county commissioners proceeded to a hearing upon the petition and on July 29, 1947, the commissioners denied the petition for the abandonment of the drainage district. The petitioners for abandonment appealed to the circuit court of Minnehaha County and the City of Sioux Falls and the Great Northern Railway Company were granted leave to intervene in the appeal. The circuit court dismissed the appeal for the reason as found by the trial court, '* * * that the petition for abandonment of Drainage Ditch No. 1 and 2, filed with the County Auditor of Minnehaha County, South Dakota, March 19, 1945, was not signed by persons owning more than three-fourths of all of the lands affected by said Drainage Ditch No. 1 and 2, and was insufficient to confer upon the Board of County Commissioners of said Minnehaha County jurisdiction of the subject matter of said proceeding * * *'. The petitioners have appealed to this court from the order of dismissal.

It appears that when respondents were permitted to intervene upon the appeal taken by the petitioners to circuit court that respondents first filed in the proceedings complaints in intervention which purported to raise an issue upon the merits of the...