Mchenry Cnty. v. Brady

• Decision Date: 14 May 1917
• Citation: Mchenry Cnty. v. Brady, 37 N.D. 59, 163 N.W. 540 (N.D. 1917)
• Parties: McHENRY COUNTY et al. v. BRADY et al.
• Court: North Dakota Supreme Court

37 N.D. 59

163 N.W. 540

McHENRY COUNTY et al.

v.BRADY et al.

Supreme Court of North Dakota.

May 14, 1917.

Syllabus by the Court.

The representatives of a public interest cannot stand idly by and allow the public interest to be litigated by private persons, and years after, and after the public improvements to be constructed have been practically completed, and private rights have become involved, seek to relitigate the matter.

A judgment is conclusive, not only upon the questions actually contested and determined, but upon the matters which were necessarily involved in the suit, and parties, or their privies, or those with a common public interest, cannot afterwards, by assigning new reasons for holding an act invalid which existed at the time the prior decision was rendered, relitigate the question.

The prohibitions of article 1, § 10, of the federal Constitution which provide that: “No state shall enter into any treaty, alliance or confederation. * * * No state shall, without the consent of Congress, * * * enter into any agreement or compact with another state or with a foreign power”-are directed against the formation of any combination tending to the increase of political power in the states which may encroach upon or interfere with the just supremacy of the United States. They are not directed against agreements which in no way encroach upon or weaken the general authority of Congress and which are in no way political, such as the obtaining of the consent of the authorities of the neighboring state or nation to the construction of a drain for the carrying away of surface waters which otherwise could be allowed to flow across the national boundary.

The action of the joint boards of drain commissioners of the counties of McHenry and Bottineau in securing an outlet in the province of Manitoba for a drain constructed along the Mouse river for the purpose of draining lands in such counties, and constructed under the provisions of sections 1821 and 1822 of the Revised Codes of 1905, as amended by chapter 93 of the Laws of 1907, and in obtaining a license from the municipality of Arthur, in said province, so to do, and in entering into an agreement to keep said drain open, is not in violation of the treaty between the United States and Canada known as Treaty Series No. 548 and ratified by the President of the United States April 1, 1910, and by Great Britain on March 31, 1910.

Under the laws of both Canada and North Dakota, the upper riparian owners have the right to make use of natural drainways for the disposal of their surface waters, and it is beyond the power of the lower riparian owners to prevent or obstruct the flow to the detriment of the upper or superior lands or territory.

The acts of de jure officers cannot be collaterally attacked.

Appeal from District Court, McHenry County; Charles M. Cooley, Special Judge.

Action for injunction by McHenry County and Kiyus Albrecht and others, as members of Board of County Commissioners, and others, against S. E. Brady and others, as members of the Board of Drain Commissioners of McHenry County, N. D., and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

This is an action brought to restrain and enjoin the further construction or maintenance of a certain drain known as Mouse River drain No. 9, and that the acts and deed of defendants in connection with the establishment and construction of said drain and the levying of taxes or assessment therefor be restrained and enjoined and declared null and void, and for such other and further relief as may be just and equitable. Since, however, the drain has now been completed, the action is now merely one to enjoin its maintenance and the levying and collecting of the taxes and assessments.

The facts have been stipulated in part and may be summarized in part as follows:

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 thereafter gradually to a northerly and northwesterly direction until it reaches the international boundary line at a point about 40 miles east of its entrance into the state, and after having passed through McHenry and Bottineau counties since it left Ward county.

The purported object of the drainage project is to deepen and widen the river bed through its course for about 30 miles south of the international boundary line, and for a distance of about 14 miles north thereof, through the channel of the river after it flows into Manitoba.

The respective drainage boards of McHenry and Bottineau counties were petitioned by the residents and landowners interested to establish a drain in the channel of the river; the petitions thereof, however, limiting the course of such drain to the point where such river enters Manitoba in a northerly direction at the boundary line.

The state engineer of North Dakota was employed and made an examination of the river and the land affected, reporting that such lands could be reclaimed and the water drained therefrom by deepening the channel of the river and widening the same to eliminate sharp curves in its course. The two boards made an examination of the proposed drain, and by resolution declared that the same was necessary for the public good. Afterward the two boards met at a joint drainage board, employed the state engineer to prepare plans, profiles, and plats of the land to be drained, and passed a resolution that the drain was necessary and for the public good. The joint board fixed July 10, 1908, as the date when objections to the proposed drain would be heard, and on such date they made an order designating the commencement and course of the drain, and declaring the same to be for the public good and necessity.

The state engineer recommended that the terminus of the proposed drain be changed from the course indicated in the petitions and established by the respective drainage boards by extending the same to the mouth of North Antler creek, where it empties into the Mouse river, 14 miles north of the boundary line in Canada, asserting the drain would be of no value or purpose unless such extension and improvement in Canada were carried out. The total cost of the drain was estimated at $142,000, of which about $70,000 would be required to do the work in Canada, unless it be, as was testified to upon the trial of this action, a change of plans will reduce this expense $16,000 to $20,000. Of this amount only $36,000 was assessed against the petitioners.

The territory across the boundary line through which the improvement of the river is to be made is in the rural municipality of Arthur and under its governmental control. This municipality passed a by-law in reference to the improvement of the river by the joint drainage board, known as By-Laws No. 372, enacted by the council of the municipality of Arthur pursuant to the municipal act of the Dominion of Canada.

The by-law recites that certain lands in McHenry and Bottineau counties are covered by water to such an extent as to render the same unfit for use. It also recites that proceedings have been taken by the joint drainage board to improve the same. The course, commencement, and terminus of the proposed drain are recited, and it is further stated in the by-law that certain lands specifically described therein, and situated in the municipality of Arthur, would be beneficially affected by the construction of the drain. It also recites that a certain number of the owners of the land affected have petitioned Bottineau and McHenry counties to construct the drain the expense thereof to be borne by such owners. The by-law further provides that the drainage works and improvements in the river, within the municipality of Arthur, when completed, be controlled by such municipality. It is further provided that the reeve and secretary-treasurer of the municipality be authorized to enter into a contract on behalf of such municipality to secure the construction and completion of the drain and its proper maintenance, pursuant to the provisions of such by-law. Such a contract was made between the rural municipality of Arthur and the joint drainage board on February 24, 1909. It recites the provisions of the by-law, and specifies that the municipality of Arthur, of the Dominion of Canada, permits the drainage commissioners to construct the drain and make the improvements northward from the international boundary in accordance with the plans prepared by the state engineer of North Dakota. The contract further provides that the commissioners are bound to improve the river, and complete such improvements in a good and workmanlike manner, and to keep the same in repair, and that the commissioners are to assume and pay all taxes or losses which might accrue or arise in consequence of the construction of this improvement, and that the municipality of Arthur is to be at all times made harmless on account of making such improvements or the maintenance thereof, and that all improvements, by reason of the construction of such drain in the river north of the international boundary line, is to be controlled by the municipality of Arthur of the Dominion of Canada and maintained by the commissioners of McHenry and Bottineau counties. This contract, while it purports to bind the county commissioners of McHenry and Bottineau counties to maintain the drain, is, however, entered into only on behalf of the joint drainage board, and not on behalf of any other officer of the counties of McHenry and Bottineau or of the state of North Dakota.

The joint drainage board has attempted to assess against the counties of McHenry and Bottineau and the township of Meadow and other townships a considerable portion of the cost of the improvement by way of special assessment, and to subject such counties and townships to the payment of their respective...