Brookings County v. Sayre

• Decision Date: 10 August 1928
• Docket Number: 6191.
• Citation: 220 N.W. 918,53 S.D. 350
• Parties: BROOKINGS COUNTY et al. v. SAYRE et al. [*]
• Court: South Dakota Supreme Court

220 N.W. 918

53 S.D. 350

BROOKINGS COUNTY et al. v. SAYRE et al. ^[*]

No. 6191.

Supreme Court of South Dakota

August 10, 1928

Appeal from Circuit Court, Brookings County; W. W. Knight, Judge.

Action by Brookings County, on behalf of H. C. Halvorson and others against B. H. Sayre and others. From an order overruling defendants' demurrer to the complaint, they appeal. Affirmed.

Hall & Purdy and Olaf Eidem, all of Brookings, for appellants.

E. A Berke, of Brookings, for respondent.

MORIARTY C.

This action was brought by Brookings county, on behalf of certain persons, to recover from the defendants expenses incurred in preliminary proceedings on a drainage ditch petition. The defendants demurred to the complaint, and this appeal is from an order of the trial court overruling the demurrer.

There are 52 defendants named in the complaint. Of these defendants, 44 signed a ditch petition as provided for in section 8459, R. C. The other defendants signed as sureties on bonds given under the requirements of said section. Expenses were incurred in preliminary proceedings, and, after such proceedings, the county board finally denied the petition. This action was brought in the name of Brookings county, on behalf of divers persons having claims growing out of the said preliminary proceedings.

The action was instituted on the theory that it is authorized by section 8462, R. C., as amended by chapter 194, Laws of 1921 which, so far as relevant, provides as follows:

"When the board of county commissioners shall have fully heard and considered such petition and all matters in opposition to or in support of the same, it shall, if it finds the proposed drainage not conducive to the public health, convenience or welfare, or not needed or practicable for the purpose of draining agricultural lands, deny such petition, the petitioners to be jointly and severally liable for the costs of the proceeding and same to be recovered in a civil action to be instituted and prosecuted in the name of and by the county on behalf of all persons having claims for costs of such proceeding."

The complaint names numerous persons on whose behalf the action is brought, alleging that each of these persons has a claim for costs incurred in the proceedings on the petition. For convenience, those defendants who are alleged to have signed the ditch petition will be referred to as petitioners, and those who are alleged to have signed the bonds as sureties will be termed sureties.

The facts alleged are as follows: On August 19, 1919, the petitioners filed in the office of the county auditor of Brookings county a petition praying for the establishment of certain drainage within said county. Pursuant to the said petition, the board of county commissioners published notices of the hearing of said petition, made an examination of the location of the proposed drainage, caused a like examination to be made by the state engineer, and held a hearing on the petition. The board appointed an engineer to make a survey of the proposed drainage and report thereon. This engineer made the survey and presented and filed a report, including maps and profiles. All these acts are alleged to have been done in the years 1919 and 1920. After the hearing, the matter was continued from time to time until January 8, 1924, when a formal resolution was passed by the board denying the petition. In the preliminary proceedings, costs in the aggregate sum of $4,127.74 were incurred, for the payment of which the petitioners are alleged to be jointly and severally liable. These costs are still due to the persons for whose benefit the action is brought, and are wholly unpaid. These allegations are relied upon as establishing plaintiff's first cause of action.

For a second cause of action, after realleging the allegations of the first cause of action, the complaint sets forth the following facts as constituting a second cause of action: On August 19, 1919, the date of the filing of the petition, the petitioners furnished to the county and filed with the county auditor a certain bond, signed by themselves as principals and by the defendants J. A. Lunden and O. O. Olson as sureties. This bond was conditioned to secure the payment by the petitioners of the costs of the proceeding in case the petition was finally denied. The liability on this bond was limited to $1,000.

For a third cause of action, the foregoing allegations of the first and second causes are realleged, and it is further alleged that, after the furnishing of the first bond, the board demanded further security, and the petitioners furnished a second bond conditioned as the previous bond, signed by part, but not all, of the petitioners as principals and by the same two sureties Lunden and Olson. The liability on this bond was limited to $1,000 in addition to the $1,000 liability on the former bond.

As a fourth cause of...