Petition of Oleson

• Decision Date: 06 February 1948
• Docket Number: No. 34499.,No. 34500.,34499.,34500.
• Citation: 225 Minn. 412,31 N.W.2d 432
• Parties: Petition of OLESON. OLESON v. COUNTY OF CHIPPEWA.
• Court: Minnesota Supreme Court

31 N.W.2d 432

225 Minn. 412

Petition of OLESON OLESON v. COUNTY OF CHIPPEWA.

No. 34499.

No. 34500.

Supreme Court of Minnesota.

February 6, 1948.

Rehearing Denied March 12, 1948.

Appeal from District Court, Chippewa County; Harold Baker, Judge.

Petition of Martin N. Oleson, owner, to determine validity of tax for 1944 on W½ NW¼ Sec. 13, Twp. 117, Range 40, Chippewa County, Minn. From two judgments in favor of owner determining that certain assessments for construction and subsequent repair of county ditch No. 36, Chippewa County, Minn., were invalid, the County of Chippewa appeals.

Judgments modified.

Sigvald B. Oyen and John P. Nelson, both of Montevideo, for appellant.

R. M. Saltness, of Dawson, and Ernest F. Jacobson, of Minneapolis, for respondent.

MAGNEY, Justice.

These are two appeals from judgments in favor of landowner determining that certain assessments for the construction and subsequent repair of county ditch No. 36, Chippewa county, Minnesota, were invalid.

Martin N. Oleson, petitioner, is the owner of a 240-acre farm in Chippewa county. In 1918, county ditch No. 36 was established and constructed. The construction of the ditch benefited petitioner's lands, and such benefits were assessed as liens against them, payable in annual installments. These installments were included with and paid as a part of the real estate taxes levied against the tracts in each successive year. Prior to September 9, 1942, the county board discovered that a deficiency of $2,271.58 existed in the amount originally assessed for the cost of construction of the ditch. Prior to said date, also, various repairs had been made on said ditch at county expense in the sum of $2,756.74.

On October 7, 1941, the county board met in special session pursuant to call "for the purpose of considering levies for repairs already made and incurred on ditches in county," and on said date voted a levy on county ditch No. 36 at 50 percent of the original cost of the ditch, payable in installments in five years.

On September 9, 1942, the board rescinded the levy made on October 7, 1941, and voted a levy for "various ditch repairs" on county ditch No. 36 at 51 percent of the original construction levy to become payable in seven annual installments. On the same day, the board made an apportionment of $5,028.32 to each of the respective tracts originally assessed for the construction of the ditch, and made, subscribed, and caused to be recorded in the office of the register of deeds a tabular statement of assessment. In so doing, the board assessed petitioner's lands in certain amounts, declared those amounts to be proportionate amounts that said respective tracts were "liable for and must pay for the repair of such ditch," and ordered and directed that said amounts be extended upon the tax lists of said county in installments.

The sum of $5,028.32 so apportioned consisted of items of repairs and expenses aggregating $2,756.74, and one item of $2,271.58, designated in the tabular statement as "shortage in levy for construction."

No notice was given to the affected landowners of the meetings of the county board on October 7, 1941, and September 9, 1942, nor of the actions taken, the apportionment made, and the assessments levied. Included in the various items of expenditures listed in the "Statement showing cost of repair of County Ditch No. 36, Chippewa County," in addition to the item of $2,271.58, "shortage in levy for construction," were several items, totaling $98.34, which expenditures were incurred through the years 1939 to 1941, both inclusive. All the other items of expenditures set forth in the statement were incurred and paid by the county during the period from 1927 to 1933, both inclusive. The court vacated and set aside the proceedings of the board taken and had on October 7, 1941, and September 9, 1942, levying assessments on petitioner's lands. It also abated, vacated, and set aside the tabular statement of apportionment and assessment of cost of repair. The court removed the cloud of the ditch lien imposed by the tabular statement on plaintiff's title to his land.

It is conceded by the county that the assessment for the deficiency in the original cost of construction was improper, and it makes no claim that it can be collected in the present proceedings. Therefore, no consideration will be given to that item.

1. The sole issue to be determined involves the validity of the assessment of $2,756.74 for repairs actually made, which amount is equivalent to 28.05 percent of the original benefits assessed in the construction of the ditch. It seems to be conceded that these repairs were ordinary repairs necessary to keep the ditch properly functioning. It is also conceded that before such repairs were made and the lands assessed for the cost thereof the landowners affected were given no notice or opportunity to be heard. Petitioner contends that failure to give such notice invalidates the levy of the assessment for the cost of these repairs.

Minn.St.1941, § 106.48, subd. 1, provides in part:

"The county board of any county in this state within which is constructed * * * any state, county, or judicial drainage system * * * shall keep the same * * * in proper repair and free from obstruction * * *."

The county board is therefore the body charged with the duty of keeping ditch No. 36 in proper repair and free from obstructions. The quoted statute does not in such case provide for the giving of notice or opportunity to be heard. This section of the statute has no application to repairs which consist of widening, deepening, or otherwise altering or improving the original ditch. Minn.St.1941, § 106.49, covers such a situation. In Re Renville County (State v. McGuire), 109 Minn. 88, 91, 122 N.W. 1120, 1121, this court stated:

"* * * There is a distinction between repairing a ditch, by removing obstructions therefrom, and widening or deepening it. * * *

"If the statute under consideration authorized ordinary repairs only, such as removing obstructions and accumulations of foreign substances in the ditch, we would follow the rule of the Iowa court, and some of the other states, to the effect that provision for notice to the owners of adjoining property is not essential to the validity of the statute. Yeomans v. Riddle, 84 Iowa 147, 50 N.W. 886. We practically so held in the case of McMillan v. Board of Commrs. of Freeborn County, 93 Minn. 16, 100 N.W. 384, where section 25, c. 258, p. 427, Laws 1901, was construed and upheld, though the precise point does not seem to have been raised. The cost and expense of ordinary repairs, the removal of rubbish and obstructions, if properly made from year to year, would be inconsiderable, and no serious burden to property owners, * * *. And, as suggested, if this statute were so limited, notice would be held unnecessary."

What the court said in the Renville county case may be an indulgence by the court in pure dicta, as suggested by petitioner, but in our opinion it presents a correct statement of the law. Breiholz v. Board of Supervisors, 257 U.S. 118, 42 S.Ct. 13, 66 L.Ed. 159. See, County of Redwood v. Winona & St. Peter Land Co., 40 Minn. 512, 518, 41 N.W. 465, 42 N.W. 473, 475.

2. The repairs here involved were made over a period of several years, and practically all of them more than six years prior to the levy of assessments for the cost thereof. Petitioner contends that the statute of limitations is a bar to the county's right to levy and collect these assessments. Minn.St.1941, and M.S.A. § 272.10, the statute in force when these assessments were made, provides:

"Except as hereinafter provided, the right to assess property omitted in any year, or to reassess taxes upon property prevented from being collected in any year, either as authorized and directed by this chapter or otherwise, shall not be defeated by reason of any limitation contained in any statute of this state, and, except as otherwise provided in this chapter, there shall be no limitation of time upon the right of the state to provide for and enforce the assessment and collection of taxes upon all property subject to taxation."

In Hacklander v. Parker, 204 Minn. 260, 262, 283 N.W. 406, 407, this court said:

"* * * The statute [of limitations] applies to actions by or on behalf of the state, but it has no application to proceedings for the enforcement of taxes on real estate. By [1] Mason Minn.St.1927, § 2206 [M.S.A. § 272.10], there is no limitation of time upon the right of the state to enforce payment of real estate taxes. [6] Dunnell, Minn.Dig. (2 Ed.) § 9525; State v. Foster, 104 Minn. 408, 116 N.W. 826; State v. United States Express Co., 114 Minn. 346, 131 N.W. 489, 37 L.R.A.,N.S., 1127."

In State v. Foster, 104 Minn. 408, 409, 116 N.W. 826, 827, the court stated:

"The tax on the land for the year 1895 accrued as a cause of action in favor of the state in January, 1897, and was barred by the statute of limitations before the commencement of this proceeding, unless the time limitation, theretofore existing upon the right of the state to enforce the collection of taxes upon all property subject to taxation, was repealed by section 82, c. 2, p. 40, Laws 1902 [Ex.Sess.], which reads as follows [Minn.St.1941, § 272.10, above quoted]."

The court continues 104 Minn. 408, at page 410, 116 N.W. 826, at page 827:

"* * * The language of the statute is clear and specific that there shall be no limitation of time upon the right to enforce all taxes upon all property subject to taxation, * * *."

In State v. Brooks, 183 Minn. 251, 253, 236 N.W. 316, an action brought to enforce the lien of an inheritance tax, the court said:

"* * * The last-cited section [Mason St.1927, § 2206] removes the bar of the statute of limitations from the state's right to assess omitted property or to reassess taxes, and provides that there shall be no limitation of time upon the right of the state to provide for and enforce the...