Heart River Irr. Dist., In re

• Decision Date: 23 August 1951
• Docket Number: No. 7242,7242
• Citation: 49 N.W.2d 217,78 N.D. 302
• Parties: In re HEART RIVER IRR. DIST. STARK et al. v. HEART RIVER IRR. DIST.
• Court: North Dakota Supreme Court

Page 217

49 N.W.2d 217

78 N.D. 302

In re HEART RIVER IRR. DIST.

STARK et al. v. HEART RIVER IRR. DIST.

No. 7242.

Supreme Court of North Dakota.

Aug. 23, 1951.

Rehearing Denied Sept. 28, 1951.

Syllabus by the Court.

1. Where the statute, 61-0733, NDRC 1943, provides that an appeal may be taken to the district court from any order, act or decision of a board of directors of an irrigation district, by any person feeling aggrieved thereby, at any time within twenty days after the order, act or decision appealed from has been made by the board, and another statute, 61-1021, NDRC 1943, provides that upon the entry in the minutes of the board of any orders relating to the exclusion of land a copy thereof, duly certified, shall be filed for record in the office of the register of deeds of each county within which are situated any of the lands of the district, and that thereupon the district shall be an irrigation district etc., the time for appeal from an order of the board of directors of an irrigation district retaining therein lands sought to be excluded therefrom does not begin to run until the order has been signed by the directors, entered on the minutes of the board and recorded in the office of the register of deeds.

2. Upon a trial de novo in the district court, on an appeal from an order of the board of directors of an irrigation district, pursuant to the provisions of Sec. 61-0733, NDRC 1943, the trial court is not limited to a consideration of the record made before the board, but may receive and consider in addition thereto any other competent evidence, oral or documentary, relevant and pertinent to the issue.

3. Where a trial de novo is demanded in the supreme court the court is required to find the facts independently of the trial court's findings, such findings have appreciable weight.

4. An owner of property giving opinion evidence on a technical matter regarding it must state the facts on which his opinion is based the same as any other nonexpert witness.

5. The weight to be given to the testimony of both expert and nonexpert witnesses is for the trier of the facts to determine.

6. Whether certain lands are nonirrigable from some natural cause is a question of fact to be determined in the first instance by the board of directors of an irrigation district under the provisions of Secs. 61-1016-7, NDRC 1943. Such a determination is a judicial determination and is subject to review by the courts.

7. When a tract of land in an irrigation district is nonirrigable from some natural cause and it has been so determined by the board of directors of the district, or the court on appeal, it is the purpose of Sec. 61-1016, NDRC 1943 to require its exclusion from the district upon proper petition therefor being made to the board of directors of the district.

8. In proceedings for excluding lands from an irrigation district the description thereof need not be more definite nor specific than the description provided by law to be used by the assessor in listing such lands for taxation, and where, as in the instant case, the board of directors of the irrigation district described the lands to be retained in the district by legal subdivisions of ten acres, such descriptions were permissible although certain ten acre tracts retained in the district contained portions of nonirrigable lands.

9. In a proceeding to exclude lands from an irrigation district under the provisions of Chapter 61-10, NDRC 1943, where it appears that the board of directors of an irrigation district has divided the legal subdivisions into rectangular ten acre tracts, the refusal of the board to exclude those tracts containing a substantial portion of irrigable land was not erroneous, it not being imperative that irrigable areas retained within a district be described by metes and bounds.

Sullivan, Kelsch & Scanlon, Mandan, for defendant and appellant.

Strutz, Jansonius & Fleck, Bismarck, for plaintiffs and respondents.

I. A. Acker, Special Asst. Atty. Gen., amicus curiae, for State Water Conservation Commission.

NELSON, District Judge.

This is an appeal from the judgment of the district court of Morton County, North Dakota, entered on a trial de novo on appeal from an order of the board of directors of appellant irrigation district retaining in the district portions of the lands of respondents which they had petitioned to have excluded therefrom. The case was recently before the court on a motion to dismiss the appeal. In re Heart River Irrigation District (Stark v. Heart River Irrigation District), N.D., 47 N.W.2d 126. The motion was denied and the case is here for determination on the merits.

The irrigation district here involved was organized on July 31, 1946 by the order of the state engineer under the provisions of Chap. 61-05, NDRC 1943. There are in the district 20,985.5 acres of land held in one hundred twenty-five separate ownerships, of which 8971 acres are owned by the eighteen respondents herein. The petitions for exclusion are all based on the claims that all of the lands described therein are nonirrigable in their natural state for the various reasons set out in the several petitions and that the cost of leveling any areas that would be irrigable if leveled is prohibitive. Chap. 61-10, NDRC 1943 provides for changing the boundaries of an irrigation district already organized or excluding lands therefrom and prescribes the procedure. The pertinent portions of the applicable statutes are as follows: Sec. 61-1014, NDRC 1943: 'The owner or owners in fee of one or more tracts of land * * * may file with the board of directors of the district a petition praying that such tracts and any other tracts contiguous there to be excluded and taken from the district. * * * The description of such lands need not be more particular nor certain than is required when the lands are entered in the assessment book by the township assessor.'

Sec. 61-1015, NDRC 1943 provides for serving notice of hearing petition for exclusion of lands, what the notice shall contain, how the notice shall be published or posted and when the hearing thereon shall be had.

Sec. 61-1016, NDRC 1943 provides for hearing the petition and any written objections thereto, the assent of affected parties, and that nonirrigable lands may not be held by the district or taxed for irrigation purposes if from any natural cause it cannot be irrigated thereby, and is as follows: 'The board, at the time and place mentioned in the notice, or at the time to which the hearing of the petition may be adjourned, shall proceed to hear the petition and all objections thereto presented in writing. The failure of any person interested in the district to show cause in writing why the tract or tracts of land mentioned in the petition should not be excluded from said district, shall be deemed an assent by him to the exclusion of such tract or tracts, or any part thereof, from said district. The filing of a petition with the board praying for the exclusion of lands from the district shall be deemed an assent by each petitioner to the exclusion from such district of the lands mentioned in the petition, or any part thereof. In no case shall any land be held by a district or taxed for irrigation purposes if from any natural cause it cannot be irrigated thereby.'

Sec. 61-1017, NDRC 1943 confers on the board of directors of an irrigation district power to deny or grant petitions for the exclusion of lands except as such power may be limited by Sec. 61-1016, supra, and so far as material here is as follows: 'If the board does not deem it for the best interests of the district that the lands mentioned in the petition, or some portion thereof, should be excluded from the district, it shall deny the petition. If it deems it for the best interests of the district that the lands mentioned in the petition, or some portion thereof, be excluded from the district, * * * the board then may order the lands mentioned in the petition or some defined portion thereof excluded from the district.'

Sec. 61-0733, NDRC 1943 provides for appeals from any order, act, or decision of the board of directors of an irrigation district to the district court and so far as material is as follows: 'An appeal may be taken to the district court from any order, act, or decision of the board of an irrigation district, by any person claiming to be aggrieved thereby, at any time within twenty days after the order, act, or decision appealed from has been made by the board. * * * The appeal shall be taken to the district court of the county in which the land claimed to be affected adversely by the act, order, or decision appealed from is situated, and if such land is situated in more than one county, the appeal may be taken to the district court of any county in which any part of such land is situated. An appeal thus taken shall be docketed as any cause pending in the district court is docketed and shall be heard and determined de novo. The district court may enter such order as the court shall deem just and proper.'

Proceeding under the provisions of the foregoing statutes the respondents, on December 10, 1949, filed with the board of directors of the irrigation district--which will hereinafter be referred to as the board,--their separate petitions for exclusion from the district of all of the lands owned by them situated within the boundaries of the district. In compliance with the provisions of Sec. 61-1015, supra, due notice was given that the petitions filed would be considered by the board at a meeting to be held by it on January 10, 1950, at which time the petitioners were present in person and were represented by counsel. The petitions then filed were identified, and with certain exhibits attached, offered and received in evidence. The board also received and filed at said meeting separate plats of the lands of each petitioner prepared by the Bureau of Reclamation, United States Department of the Interior,...