Gourd v. County of Morrison
| Decision Date | 21 June 1912 |
| Docket Number | 17,632 - (224) |
| Citation | 136 N.W. 874,118 Minn. 294 |
| Parties | CYNTHIA GOURD v. COUNTY OF MORRISON |
| Court | Minnesota Supreme Court |
Action in the district court for Morrison county by the administratrix of the estate of F. R. Gourd, deceased, to vacate certain ditch proceedings, the order of the board of county commissioners establishing County Ditch No. 12, and to remove the cloud on plaintiff's title to certain real estate. Among other matters, the answer alleged that the ditch was actually constructed under the proceedings instituted therefor; that the land of plaintiff was thereby benefited; that the then owner of the land, plaintiff's grantor, lived upon the land, knew that the ditch was being constructed, was one of the petitioners therefor, and made no protest against its construction until long after the work had been performed, except by protesting to the payment of the ditch assessment. The reply was a denial of the new matter contained in the answer. The case was tried before Taylor, J., who made findings and conclusions of law as stated in the opinion. From the judgment entered pursuant to the findings, defendant appealed. Affirmed.
Rulings on evidence -- record on appeal.
Where evidence is admitted subject to a future ruling as to its admissibility, the objecting party must renew his objection at the proper time and secure a ruling, and the record on appeal must show how the question was finally disposed of.
Objections to rulings -- review in this court.
To warrant review by this court of the action of the trial court in admitting evidence, the ruling of the trial court, or its refusal to rule, on objections to the admissibility of the evidence, either must be excepted to at the trial, or else the point must be assigned as error on a motion for a new trial; such objections not being presentable for the first time by assigning error thereon in this court.
Reviewable questions on the record.
The trial court's findings of fact cannot be reviewed by this court, where there is neither a settled case nor a bill of exceptions in the record, and no certificate of the trial court concerning the evidence or the proceedings on the trial; the only question reviewable in such case being whether the findings of fact support the judgment.
Establishing ditch -- records admissible in evidence.
In an action by a landowner to vacate, and have adjudged void as to him, the proceedings of a county board establishing a drainage ditch, and to vacate the assessment and the tabular statement thereof on file in the office of the register of deeds, and, further, to discharge the plaintiff's lands from the apparent lien created thereby, on the ground that the order laying the ditch was invalid, the files and proceedings in the county auditor's office relating to the establishment of such ditch are admissible in evidence upon the issue of the validity of the establishment thereof and of the assessment therefor.
Abating ditch -- judgment roll admissible.
In such an action the judgment roll in a prior action by a stranger to this action against this defendant, in which the said ditch was declared illegal and ordered abated, is admissible if for no other reason, upon the issues as tending to show that the plaintiff will receive no benefit from the said ditch.
Decision justified by findings.
Findings in such an action considered, and held sufficient to support the judgment rendered for the plaintiff, vacating, as to him the ditch assessment and tabular statement thereof, and discharging his lands from the apparent lien created thereby.
D. M. Cameron, for appellant.
E. P. Adams, for respondent.
This action was brought to vacate and to have adjudged void, as to the plaintiff, the proceedings and order of the county board of Morrison county, establishing county ditch No. 12, and vacating and annulling the ditch assessment and the tabular statement thereof on file and of record in the office of the register of deeds of the said county, as clouds on the plaintiff's title, and to further discharge the lands described in the complaint from the apparent lien created thereby. Subsequently to the determination of the action below, the plaintiff, F. R. Gourd, died, and his administratrix was substituted as such in place of the original plaintiff. The cause was heard by the court without a jury, and findings made in favor of the plaintiff. The defendant moved for a new trial, and the application was denied. Judgment was entered in plaintiff's favor, and this is an appeal therefrom.
The court's findings, which we hold were sustained by the evidence, were in effect as follows:
The original plaintiff was the owner of the lands described in the complaint at all times therein referred to. In April, 1905, certain residents of the county, petitioned the county board to establish a ditch, designated as "County Ditch No. 12, in township 131, range 30," being the same township wherein the plaintiff's said lands were situated. In October, 1905, the board made its order attempting to establish the ditch, and a ditch was constructed. Thereafter, and in January, 1907, the auditor of the county filed, in due form, with the register of deeds of the county, who forthwith recorded the same in his office, a tabulated list and statement showing the amounts charged against the various tracts of land in the vicinity of the ditch, to defray the expense of its construction, which list included the plaintiff's lands described in the complaint, and the amount therein entered against them for the construction of the drain was, in all, the sum of $985.53. The trial court further found that the description of the ditch in the alleged proceedings for its establishment was so indefinite and uncertain that the ditch could not be located therefrom, and that the county board had no right or authority to establish or construct it.
It was also found: and that the ground of such decision was the indefiniteness and uncertainty in the description of the ditch in all of the proceedings for its establishment, to the extent that the ditch could not be located therefrom.
The court further found that the ditch was actually constructed and completed pursuant to the above-mentioned proceedings...
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