Freeman v. Trimble

• Decision Date: 21 January 1910
• Citation: 129 N.W. 83,21 N.D. 1
• Parties: FREEMAN et al. v. TRIMBLE et al., Drain Com'rs.
• Court: North Dakota Supreme Court

21 N.D. 1

129 N.W. 83

FREEMAN et al.

v.TRIMBLE et al., Drain Com'rs.

Supreme Court of North Dakota.

Jan. 21, 1910.

Syllabus by the Court.

Boards of drain commissioners have only such powers as are expressly conferred by statute, or necessarily implied from the powers conferred.

In acting as drain commissioners, a large discretion is vested in them in assessing benefits and in determining when outlets for drains may be secured, and that discretion will not be interfered with where power is granted to them, except in case of fraud or manifest abuse of such discretion.

Under sections 1821 and 1822, Rev. Codes 1905, as amended by chapter 93, Laws 1907, joint boards of drain commissioners have power to secure an outlet to drains established within their district, in foreign territory, where a public necessity exists for securing such outlets.

Where it is necessary to improve, deepen, or widen the channel or bed of a river in this state in order to drain flooded lands, and the deepening and widening of such river in this state would not be effectual in draining such lands without deepening and widening the river bed for about 12 or 14 miles after it passes into Canada, the drain commissioners have power to secure a suitable outlet by improving the river after it passes into Canada.

In such a case, the fact that the control of the improvement after its completion is not vested in the county commissioners, but in the council of the municipality through which the river passes, in Canada, by virtue of a by-law of said municipality and a contract between it and the board of drain commissioners, does not defeat the right of the drain commissioners to secure such outlet by improving the river bed.

Section 1823, Rev. Codes 1905, as amended in 1907, making it necessary to secure the right of way to land through which drains in this state pass, has no application to improvement of water courses for drainage purposes.

Improving a water course after it passes beyond the drainage district for 12 to 14 miles into foreign territory, for the purpose of making an improvement of the water course in this state efficacious, is not an unreasonable exercise of the power of securing an outlet for drain purposes.

The general principle that land benefited by a drain equally with other land that is assessed for such benefits shall not be arbitrarily omitted from such assessment, is not applicable where land in foreign territory is not and cannot be assessed for benefits incident to the construction of the drain in the drainage district that is assessed.

Appeal from District Court, McHenry County; Templeton, Judge (by Request).

Action by George Freeman and others against John Trimble and others, as Drain Commissioners of the Counties of Bottineau and McHenry. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Spalding and Carmody, JJ., dissenting.

Geo. A. Bangs, for appellants. Skulason & Burtness, for respondents.

MORGAN, C. J.

This action involves the validity and legality of a drainage project instituted under chapter 23, Rev. Codes 1905, as amended by chapter 93, of the Laws of 1907. The plaintiffs are residents and freeholders of McHenry county, whose lands will be affected by the construction of the proposed drain. The defendants are members of the board of drainage commissioners of the county of McHenry and the members of the board of drainage commissioners of the county of Bottineau, acting as a joint drainage board of said counties, through both of which counties the proposed drain passes.

The complaint alleges, in substance, the following facts: That the defendants, acting as a joint board of drainage commissioners of the counties of McHenry and Bottineau, held a meeting on the 1st day of June, 1908, for the purpose of establishing a drain through the counties of McHenry and Bottineau, and thereafter said joint board attempted and pretended to assess the lands of the plaintiffs for the purpose of constructing said drain, designated as Mouse River Drain No. 9. In the complaint it is further alleged that no legal petition was ever presented to said drainage boards of either of said counties, nor to said joint board, signed by freeholders of said counties, whose property is to be affected by the drain, and that, in consequence of such fact, no authority whatever was conferred upon the defendants to act in reference to the establishment of said drain. The invalidity of the acts of the joint board of drainage commissioners is based upon the alleged fact that the drain was not to be established as described in the petition of the freeholders of said counties, but the same was to be constructed and established by widening, deepening, and clearing out the channel of said Mouse river after it had crossed the international boundary line between Bottineau county and the province of Manitoba, and extending such improvement into Canada for a distance of about 12 miles beyond the said international boundary line.

The complaint further alleges that said joint board of drainage commissioners is about to submit the proposition of the construction of said drain to contractors to do the work for the lowest bid, and was about to enter into a contract for the making and constructing of said drain with the lowest bidder. The relief asked is that said board be permanently enjoined from entering into such contract, and from doing anything further toward the establishment of said drain.

The judge of the district court of the Ninth judicial district issued a preliminary injunction against said joint board of drainage commissioners restraining it from entering into any contract for said purpose until a further order of the court. Upon the return day of the order to show cause why said drainage commissioners should not be permanently restrained from further proceedings in reference to the construction of said drain, the parties appeared before the judge of the First judicial district, acting by request of the judge of the Ninth district, and, after a hearing, the preliminary injunctional order was continued in force. From this order, the defendants have appealed.

In the trial court the facts were stipulated by the parties, and are, in substance, as follows: The proceedings of the drainage boards are not in any way attacked except so far as the joint board is attempting to act outside of the limits of the state of North Dakota, and within the Dominion of Canada, in reference to widening and deepening the channel of said Mouse river after it enters into Canada. So far as such acts are concerned, the plaintiffs contend that they are wholly unauthorized, and that there exists no power, express or implied, in the drainage board to perform such work.

The facts stipulated are here only summarized. It appears that about 22,000 acres of land in McHenry and Bottineau counties have become flooded by reason of the clogging up of the channel of the Mouse river, and, in consequence of that fact, this land has become to a great extent useless for agricultural and grazing purposes. The Mouse river enters the state of North Dakota in the eastern part of Ward county, and thereafter flows in a southeasterly course for about 65 miles from the international boundary line. It then changes its course to an easterly, and afterwards gradually to a northerly, and thereafter to a northwesterly, direction until it reaches the international boundary line, at a place about 40 miles east of its entrance into the state of North Dakota, and after having passed through McHenry and Bottineau counties since it left Ward county. The object of the drainage project is to reclaim this land by deepening and widening the river bed and channel throughout its course for about 30 miles south of the international boundary line, and making such deepening and widening of practical utility by securing a sufficient outlet for the accumulated water by deepening the channel of the river after it flows into Manitoba.

The county commissioners of said counties of McHenry and Bottineau each appointed a drainage board for their respective counties, and these two boards were duly and regularly petitioned by residents and landowners interested to establish a drain by improving the channel of the river, as before stated, within said counties. Each of these drainage boards employed the state engineer of the state of North Dakota, who made an examination of the river and the flooded lands, and thereafter made a report to said boards to the effect that such lands could be reclaimed and the water drained from them by deepening the channel of the river, and by widening the river bed where there are sharp curves in its course. These two drainage boards made an examination of the proposed drain within their respective counties, and by resolution declared that such drain was necessary for the public good. Thereafter these boards met as a joint drainage board for said counties and duly organized, and employed said state engineer to prepare plans, profiles, and plats of the lands to be drained, and by resolution declared such drain to be necessary for the public good. Thereafter said engineer filed a report with the joint drainage board, and said board fixed July 10, 1908, as the day when objections to the proposed drain would be heard, and on said day, said board declared by resolution that the drain was a public necessity, and that its cost would not exceed the benefits to be derived therefrom. On that day, said board also made an order designating the commencement of said drain, its course and terminus, and its name to be “Mouse River Drain No. 9.” In such order it was declared that such drain was a public necessity, and for the public good and health.

In his report the state engineer recommended and advised that the terminus of the proposed drain be changed from the course petitioned for and established by the respective county drainage boards, and the joint board by resolution...