Hackney v. Elliott

• Citation: 23 N.D. 373,137 N.W. 433
• Parties: HACKNEY v. ELLIOTT.
• Decision Date: 01 May 1912
• Court: United States State Supreme Court of North Dakota

23 N.D. 373

137 N.W. 433

HACKNEY

v.ELLIOTT.

Supreme Court of North Dakota.

May 1, 1912.

Syllabus by the Court.

This is an action to cancel tax certificates on sale for special drainage assessments arising from the tricounty drain in Ransom, Sargent, and Richland counties, on nonpayment of which assessments plaintiff's lands were sold. Held:

That the petition for drainage presented to the Richland county drainage board was sufficient to confer jurisdiction upon said board to act.

(a) Our drainage statutes were adopted from the Michigan drainage statutes in force in 1893.

(b) A petition for drainage of agricultural lands need not contain an averment of the necessity for the proposed drain, nor that it will drain agricultural lands, nor that the signers thereto are freeholders whose lands will be affected by the proposed drain, nor other than a general description with beginning and end of the course of the proposed drain. Upon the board finding the existence of necessity for the drain, and that the petition was signed by a sufficient number of qualified petitioners, and finding the purpose to be that of drainage of agricultural lands with such finding based upon a survey had of the course of the drain and establishment of its commencement, terminus, route, width, and depth thereof, and after the preparation and filing of profiles, plans, specifications, estimates of cost and map or plat of the lands to be drained, and a finding that the benefits to be derived will exceed the total cost of construction thereof, the drainage board is then authorized by law to construct said drain; such findings curing defects in the petition because of its failure to designate the purpose thereof and that the same will result to the benefit of the health, convenience, or welfare, or show that the sighers thereof are legally qualified as such.

(c) In determining the sufficiency of the petition to confer jurisdiction to act thereunder, the drainage board may take judicial notice of and consider with said petition the fact that the course of the drain as petitioned for will traverse agricultural lands, and also of the character of another drain of which the petition recites the one petitioned for would be but a continuation of, and of all such other matters of location, place, distance, extent, area, topography, and general condition of lands within its county as a court would be authorized to take judicial notice of under Rev. Codes 1905, §§ 7318, 7319.

(d) Where the order establishing a drain makes reference to the surveyor's minutes of a survey, profiles, plans, and specifications filed with the county auditor, these may be considered with and as supplementing the description contained in the order establishing such drain.

(e) Where a petition has been acted upon and a drain established thereunder, the fact that it contains an unnecessary word obscuring its meaning, when with such word omitted the meaning would be plain, the petition will not be held void as unintelligible.

(f) The action of the county drainage board in incorporating in the order establishing the main drain an order establishing a spur or branch drain will not under the record herein be held to invalidate all proceedings had and relieve plaintiff's lands in another county from their assessment to defray construction of the tricounty drain. Such are but irregularities and do not go to the board's jurisdiction.

The apportionment of benefits by percentages held valid.

(a) The placing of the words “per cent.” at the head of a column of decimal fractions, apportioning such decimal fractional part of the total benefits as is received by the specific tract opposite such decimal fraction to it, does not indicate that the tax to be calculated thereon shall be computed by taking such decimal fractional part of one per cent. of the entire cost of construction, but, instead, such decimal fractional part of the entire cost. The words “per cent.” as so used mean the decimal fractional part or share by decimal part or percentage of the whole. Such schedule of apportionment of benefits by decimal fractional part or percentage thereof will be calculated under the usual interpretation instead of by a strained construction.

(b) In the absence of a showing of a want of uniformity in such apportionment of specific benefits, the presumption will be in favor of its validity and that the tax computed therefrom was not excessive.

The apportionment of specific benefits, when made not being based upon or having any relation to either the estimated or actual cost of the project, the fact that the actual cost may far exceed the estimated cost thereof can in no wise affect the validity of the apportionment of benefits by percentages.

(a) Nor can any excess of actual overestimated cost of construction be considered as in effect the taking of property without due process of law or as rendering the drainage act unconstitutional because thereof.

(b) The fact that the notice of hearing of apportionment of benefits by percentages as to specific tracts, and that the notice of confirmation thereof contained an erroneous estimate of the total cost of construction, does not alone render the portion of the assessment in excess of the estimated cost, but within the actual cost of construction as levied against such tracts and computed by such percentages of the total actual cost, invalid as the taking of property without due process of law.

(c) After petitions for the establishment of the portion of the tricounty drain within each county had been severally granted, and the portion of the drain in each county severally established by each county board, it was the duty of the three county drainage boards to meet in joint session, under Rev. Codes 1905, § 1836, to determine the proportion of the whole benefits to be derived from the drain the lands within each county will receive therefrom; in so acting the tricounty board does not deal with individual tracts as such, but, instead, with a county apportionment of benefits considering collectively each county's lands benefited and determining the proportion each county's lands bears to all the lands benefited; as in percentages of benefits received, so in damages for right of way and property taken under eminent domain for public use. Such joint board has no duties other than such county apportionments and calculation of total cost of drain.

(d) In such apportionment each county board acts severally as an integral part of the joint or tricounty body.

(e) After such apportionment between the counties by percentages of benefits received, proportionate to total benefits from the drain, the fact that thereafter the three boards met in joint session and jointly and severally as boards signed and put forth a list of special assessments as to each and all the tracts within the three counties so benefited by the drain, but computed on a proper basis of percentage of benefits in the same manner as would have resulted had each board separately determined said assessment in specific amounts, will not invalidate the tax so apportioned in specific amounts to each tract where the lands are classified by counties with a direction accordingly to the county auditors to spread the assessments against such lands described as are situated within their several counties. Such a list amounts but to the issuance of three several lists in which each county board determines the tax in specific amounts upon lands within its county. The fact that they unauthorizedly so acted in joint session does not invalidate such assessments.

Section 1827, Rev. Codes 1905, in terms requires the board of drain commissioners of each county, prior to the letting of contracts for the construction of the drain, to make a return to the county auditor, and requires that “such return shall contain” certain papers, minutes, and proceedings. The board of drain commissioners of Ransom county made such return. This statute requires the recording of said return by the auditor. This return was never recorded. Held, that the making of such record is not inherently a part of or condition precedent to the assessment, but, instead, merely a legislative requirement, and as such for the purpose of procuring a record to be made of prior proceedings; that such recording is not required that constructive notice be given thereby of previous proceedings, notice of which had prior thereto been required to be given otherwise. Such failure to record is a mere irregularity not invalidating the assessment; the statute being directory and not mandatory.

The pendency of an action at the time of the tax sale, brought by this plaintiff against Ransom county to determine the validity of these special drainage assessments, but not enjoining the sale therefor, is not of itself constructive notice to a purchaser at such tax sale of any rights of the plaintiff, so as to prevent such purchaser from asserting, in a subsequent action brought by the former plaintiff, any rights of estoppel or otherwise that might have been available by the county in its defense in the original action.

Jurisdiction having been conferred upon the drain boards to establish and construct this drain, and an apportionment of benefits and assessment based thereon having been made by the proper authorities, resulting in the tax having been spread and becoming a lien by operation of law, all without plaintiff's objection and with his actual knowledge that his lands with others were being benefited by the construction of the drain, at great expense, of the making of which he had actual notice, said proceedings covering a period of nearly five years, during which period before and since the completion of the project he has remained acquiescent, he having granted right of way though not a petitioner for drainage, plaintiff will not be heard in equity to assert the invalidity of special assessments levied upon his property to defray such...