Chester v. Einarson
| Decision Date | 27 October 1948 |
| Docket Number | 7096. |
| Court | North Dakota Supreme Court |
Rehearing Denied Dec. 6, 1948.
See 35 N.W.2d 137. [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Syllabus by the Court.
1. Under the laws of North Dakota the board of county commissioners of any county is authorized to appoint three freeholders of the county as a board of drain commissioners of the county. R.C.1943, Sec. 61-2103.
2. A proceeding for the construction of a drain is initiated by the presentation of a petition to the board of drain commissioners signed by at least six freeholders whose property will be affected by the drain. R.C.1943, Sec 61-2110.
3. Jurisdiction of a board of drain commissioners to enter upon the inquiry with respect to a proposed drain is acquired when the petition prescribed by R.C.1943, Sec. 61-2110 is filed; and after the board has passed upon the sufficiency of the petition and ordered the same received and filed, and has proceeded to act thereunder, its jurisdiction to take all subsequent steps necessary to the establishment of the drain has attached, and it can not thereafter be ousted of jurisdiction by the action of any of the petitioners in attempting to withdraw their names from the petition. Sim et al. v. Rosholt, 16 N.D. 77, 112 N.W. 50, 11 L.R.A.,N.S., 372, followed.
4. Upon the filing of a petition for the construction of a drain it becomes the duty of the board of drain commissioners, as soon as practicable, to proceed to examine the line of the proposed drain, and if in its opinion the proposed drain is necessary for the public good the board is required to adopt a resolution to that effect, and also to adopt a resolution designating a competent surveyor to survey the line thereof and establish the commencement and terminus and determine the route, width, length and depth thereof. R.C.1943, Sec. 61-2111.
5. Upon the filing of the surveyor's report, the board is required to fix a date and public place for hearing objections to the petition. At least ten days' notice of such hearing must be given by posting, and a notice must be sent also by registered mail to the post office address, as shown by the records of the Register of Deeds or County Treasurer of the county, of each owner of land which may be affected by the proposed drain. R.C.1943, Sec. 61-2114, Laws 1945, Ch. 327.
6. The requirement with respect to notice by registered mail is met when notice is sent by registered mail to the post office address, as shown by the records of the Register of Deeds or County Treasurer of the county, of each owner of land which may be affected by the proposed drain.
7. At the hearing called pursuant to the provisions of R.C.1943, Sec. 61-2114 Laws 1945, Chapter 327, all persons whose land may be affected by the drain may appear before the board and may express fully their opinions and offer evidence upon the matters pertaining thereto; and landowners whose land is subject to assessment for the construction of the proposed drain may petition for a discontinuance of the proceedings and if a majority such landowners petition the board to have further proceedings discontinued the board is required to adopt a resolution ordering that further proceedings be discontinued. R.C.1943, Sections 61-2114 and 61-2115.
8. A petition for discontinuance of further proceedings may be presented to the board of drain commissioners at any time upon and during the hearing on the petition, held under Sec. 61-2114 as amended; and one who petitions that further proceedings be discontinued may withdraw his petition or his signature to any petition asking for such discontinuance at any time before the hearing is closed, or the board has taken final action and by resolution ordered that further proceedings be discontinued.
9. The board of drain commissioners have authority to continue the hearing held pursuant to said Sec. 61-2114, supra, including the hearing upon and consideration of a petition or petitions for discontinuance of the proceedings that may have been presented for consideration at such hearing.
10. Where landowners have petitioned that further proceedings be discontinued it becomes the function and the duty of the board of drain commissioners to determine whether those who have so petitioned are sufficient in number and are among the class of persons mentioned in the law as alone having the right to petition that the proceedings be discontinued.
11. In conducting the hearing had pursuant to said Sec. 61-2114, supra, and in making determinations of questions arising on such hearing, including questions arising upon a petition or petitions that all further proceedings be discontinued, the board of drain commissioners acts within its jurisdiction, and its determinations are not open to collateral attack, and if not corrected in the mode pointed out by the statute they are final and conclusive in the absence of allegation and proof that the party or parties aggrieved by the determinations were deprived by fraud of their right to invoke the statutory remedy.
12. Any person whose land is assessed or may be assessed for the contruction of a drain may appeal to the district court from the order of the board establishing the drain. In the district court the case must be tried in all respects as a court case without a jury. On such trial the district court is not concluded by any determination made by the board, but may review and determine any and all questions involved in the proceeding for the establishment of the drain and which preceded the order establishing the drain, including the questions whether 'there was, in the first instance, sufficient cause for making the petition for the establishment of the drain and whether the proposed drain will cost more than the amount of benefits to be derived therefrom.' R.C.1943, Sec. 61-2117.
13. Where the law provides an appeal from an order or determination of a board whereby the correctness and validity of the order or determination may be reviewed in court the remedy so provided, if adequate, must be pursued and the party having the right of appeal may not disregard such remedy and obtain injunctive relief against the enforcement of the order or decision.
14. The minutes of the board of drain commissioners are not impeached or their credibility affected because it is shown that the formal minutes were not written at the time the proceedings occurred, but that the clerk of the board who attended the meetings took notes of the proceedings as they occurred and thereafter wrote the formal minutes from such notes and submitted them to the board for approval and the board approved and signed the minutes.
15. An assignment of error predicated upon the contention that the board acted illegally in 'the letting of bids' considered and for reasons stated in the opinion held not to constitute any ground for injunctive relief in this case.
16. It is presumed that official duty has been regularly performed and that the law has been obeyed.
17. Errors of judgment do not constitute fraud. The law will not infer fraud from a mistake without other circumstances.
18. Fraud will not be presumed. The presumption is against the existence of fraud and it must be affirmatively proved by one who relies on it either for the purpose of attack or defense.
Day, Lundberg & Stokes, of Grafton, and R. H. McEnroe, of Drayton, for appellants.
W. T. DePuy, of Grafton, for respondents.
This is an action to enjoin the boards of drain commissioners of Walsh and Pembina Counties, respectively, acting as a joint board, from constructing proposed Drain No. 50 for the drainage of certain farm land in said counties, and from spreading assessments therefor. The district court of Walsh County denied the injunction. Now, upon appeal from the judgment herein dated October 8, 1947, the case is here for trial de novo.
Under the laws of North Dakota the board of county commissioners of any county is authorized to appoint three freeholders of the county as board of drain commissioners of such county. R.C.1943, Sec. 61-2103. Proceedings for the establishment and construction of drains must be had before such board of drain commissioners. The laws relating to the proceedings for the establishment and construction of drains provide:
'Upon the presentation of a petition as provided in section 61-2110, the board, as soon as practicable, shall proceed to examine the line of the proposed drain, and if in its opinion it is necessary for the public good, it shall adopt a resolution to that effect and also shall adopt a resolution designating a competent surveyor who shall survey the line thereof and establish the commencement and terminus and determine the route, width, length, and depth thereof.' R.C.1943, Sec. 61-2111.
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Sargent Cnty. Water Res. Dist. v. Beck
... ... statutory appeal is an adequate legal remedy, and no suit for ... injunction will lie as a substitute."); Chester v ... Einarson , 76 N.D. 205, 219, 34 N.W.2d 418, 427-28 (1948) ... (Holding "[w]here the law provides an appeal from an ... order or ... ...