In re Bernalillo County Drainage Dist. No. 1.

• Decision Date: 28 February 1919
• Docket Number: No. 2263.,2263.
• Citation: 25 N.M. 171,179 P. 233
• Court: New Mexico Supreme Court
• Parties: In re BERNALILLO COUNTY DRAINAGE DIST. NO. 1.

25 N.M. 171

179 P. 233

In re BERNALILLO COUNTY DRAINAGE DIST. NO. 1.

No. 2263.

Supreme Court of New Mexico.

Feb. 28, 1919.

Syllabus by the Court.

Where a petition of a prescribed number of real estate owners is required to initiate proceedings for the formation of a drainage district, any person signing the petition has the right to withdraw his name at any time before the district court, it being the agency created by law to determine the matter submitted by the petition, has finally acted upon the petition, and has determined that the petition is signed by the number required to create the drainage district.

Appeal from District Court, Bernalillo County; Raynolds, Judge.

Petition by A. B. Stroup and others for the creation of Bernalillo County Drainage District No. 1. From the overruling of a motion to strike from the answer and remonstrance that part thereof praying that certain names be withdrawn from the affirmative petition, and dismissing the petition, A. B. Stroup and others appeal. Affirmed.

Where a petition of a prescribed number of real estate owners is required to initiate proceedings for the formation of a drainage district, any person signing the petition has the right to withdraw his name at any time before the district court, it being the agency created by law to determine the matter submitted by the petition, has finally acted upon the petition, and has determined that the petition is signed by the number required to create the drainage district.

A. B. Stroup, of Albuquerque, for appellants.

R. P. Barnes, of Albuquerque, for appellee.

ROBERTS, J.

This appeal was prosecuted from a judgment of the district court of Bernalillo county by A. B. Stroup, one of the petitioners in the above-entitled matter, for himself and certain other petitioners. The district court overruled a motion to strike from the answer and remonstrance that part of said answer and remonstrance praying that certain names might be withdrawn from the affirmative petition, and holding that the withdrawal of said names was lawful, and thereupon dismissing the petition praying for the creation of Bernalillo County Drainage District No. 1, and giving judgment for costs against the petitioner.

The matter is presented here upon a stipulation of fact, approved by the trial court. The stipulation shows that on the 8th day of February, 1918, there was filed in the district court of Bernalillo county a petition praying for the formation of a drainage district within such county, to be known as “Bernalillo County Drainage District No. 1.” The petition conformed with the requirements of law in its form and matter. At the time it was filed it was signed by 326 reputed owners of land within said drainage district, and showed that the total number of real estate owners therein was 578; that the 326 petitioners owned more than one-third of the area of the proposed drainage district. In other words, the petition was in all things in conformity with section 1877, Code 1915. Notice was given as required by section 1880, Code 1915. On the date fixed for the hearing a remonstrance was filed, signed by 488 persons, 141 of whom had signed the affirmative petition, and these 141 prayed that their names might be withdrawn from the affirmative petition, and that they might be no longer considered as being in favor of the formation of the proposed Bernalillo County Drainage District No. 1. The court held that it was lawful for the 141 property owners to withdraw their names from the affirmative petition, and thus reduce the number of signatures to less than one-half of property owners within said district, and dismissed the petition, and gave judgment against the petitioners for costs.

The single question involved in the appeal is as to whether or not it was lawful for the petitioners to withdraw their signatures from the drainage petition at the time and in the manner stated. Section 1877, supra, provides for the petition and the number of landowners required to initiate proceedings, and that such petition shall be filed in the district court of the county in which the lands, or any part of them, shall lie. Section 1880, supra, provides that, when such petition has been filed, the court or judge shall make an order fixing a time and place for hearing thereon and ordering notice, and further provides for the manner of service of the notice. Sections 1887 and 1888 are as follows:

“Sec. 1887. On the day fixed for hearing on such petition all parties owning lands, or any interests or easements in land, within said proposed district, or who would be affected thereby, may appear and contest.

1. The sufficiency of the petition.

2. The sufficiency of the signers of the petition.

3. The sufficiency of the notice.

4. The constitutionality of the law, and

5. The jurisdiction of the court, specifying their objections to such jurisdiction; and the petitioners and contestants may, on the trial day offer any competent...