Petition of Schoenfelder

• Decision Date: 10 October 1952
• Docket Number: No. 35896,35896
• Citation: 55 N.W.2d 305,238 Minn. 15
• Parties: Petition of SCHOENFELDER et al. SCHOENFELDER et al. v. BECKMAN et al.
• Court: Minnesota Supreme Court

Page 305

55 N.W.2d 305

238 Minn. 15

Petition of SCHOENFELDER et al.

SCHOENFELDER et al. v. BECKMAN et al.

No. 35896.

Supreme Court of Minnesota.

Oct. 10, 1952.

Syllabus by the Court.

Landowners who are not parties to a proceeding for the improvement of a drainage ditch and are not subject to an assessment for benefits or entitled to damages are not aggrieved parties within the meaning of M.S.A. § 106.631 so as to entitle them to appeal to the district court from an order of the board of county commissioners granting a petition for such improvement or to appeal to this court from an order of the district court dismissing such appeal.

Leo. J. Lauerman, Olivia, Paul D. Stratton, Granite Falls, Barnard & Berg, Renville, for appellants.

Frank J. Murray, Clara City, for respondents.

KNUTSON, Justice.

This is a petition to dismiss two appeals in a ditch proceeding.

The facts pertinent to a decision of the petition now before us are as follows: In September 1947, a petition for the improvement of county ditch No. 15 in Chippewa county was filed with the board of county commissioners. After a hearing, the county board, on September 13, 1951, ordered the improvement. On October 18 1951, notices of appeal to the district court were filed by two groups of individuals as aggrieved parties under the provisions of M.S.A. § 106.631, subd. 4. The first group consisted of Herbert Pieper, Joest Asche, Jr., and George F. Pieper, all of whom were landowners subject to an assessment for the improvement, and their appeals are now pending for trial in district court. The other group consisted of L. E. Beckman, W. A. Hess, George W. Beckman, E. P, Gerde, Emil Tammen, Alvan M. Wareham, R. C. Pederson, W. H. Kramer, Herbert Pieper, and Martin Hagen, none of whom are parties to the proceeding or subject to assessment for the proposed improvement, with the exception of Herbert Pieper, who is a member of both groups and whose appeal in the first group, which is pending for trial, raises the same issues as the appeal of the second group mentioned. We are concerned here only with the appeal of the latter group, which will be referred to herein for convenience as the Beckman appeal.

At the call of the calendar of the district court on December 17, 1951, counsel for Beckman and the others joining in his appeal appeared specially and objected to proceeding with the trial of the cases on the ground that the county board had lost jurisdiction and was not authorized to grant the petition for the improvement, and on other grounds not here material. At the same time, petitioners for the improvement moved the court to dismiss the Beckman appeal. The court overruled the objection of appellants Beckman, et al., and denied the motion of petitioners to dismiss the Beckman appeal by an order dated April 3, 1952. Thereafter, petitioners moved the court to reconsider their motion to dismiss. Service was made on the attorneys for appellants Beckman, et al. The motion came on for hearing on May 31, 1952. Appellants Beckman, et al., made no appearance. On June 14, 1952, the court made its order amending its former order of April 3 and dismissing the Beckman appeal. Appeals to this court have been taken from the order overruling appellants' objection to the jurisdiction of the county board and from the order dismissing the appeal of Beckman, et al. Respondents, who are petitioners for the ditch improvement, now move to dismiss the appeals here on the ground that the two orders involved are not appealable and on other grounds.

The right of appeal to this court in drainage proceedings is governed by M.S.A. § 106.631, subd. 5, which reads as follows:

'Any party aggrieved by a final order or judgment rendered on appeal to the district court, or by the order made in any judicial ditch proceeding dismissing the petition therefor or establishing or refusing to establish any judicial ditch, may appeal therefrom to the supreme court in the manner provided in civil actions. Such appeal shall be made and perfected within 30 days after the filing of the order or entry of judgment. The notice of appeal shall be served on the clerk of the district court and need not be served on any other person.'

Clearly, the order of April 3, overruling the objection of appellants to the jurisdiction of the county board, is not a final order or judgment and is therefore not appealable. All this order did was to leave the appeal on for trial. The appeal here from such order should be and is hereby dismissed.

The appeal from the order of June 14, dismissing the Beckman appeal, presents a more difficult question. It is the contention of these appellants that county ditch No. 15 empties into county ditch No. 11, both of which were established many years ago. Authority was procured at the time of the establishment of county ditch No. 15 to use county ditch No. 11 as the outlet for the waters drained through county ditch No. 15. It is contended that the improvement now sought will enlarge original ditch No. 15 and is calculated to and will dump more water into ditch No. 11 than was first contemplated; that permission to use ditch No. 11 as an outlet for such increased quantities of water has not been obtained; and that these appellants, who own land drained by ditch No. 11, will be injuriously affected by the improvement of ditch No. 15 because of the inadequacy of ditch No. 11 to handle such increased quantities of water. Hence, appellants contend that they are aggrieved parties, and that, as to them, the order of dismissal is a final order.

The question presented by this appeal is whether a landowner claiming to be adversely affected by the establishment or improvement of a drainage ditch but who is not a party to the ditch proceedings and is not subject to assessment for benefits or entitled to damages may appeal as an aggrieved party from an order of the county board granting a petition for the establishment or improvement of such ditch without first taking some action to become a party, by intervention or otherwise, in the proceeding itself. We think not.

Ordinarily, only parties to the record or their privies may appeal. 1 Dunnell, Dig. & Supp. § 310. In State v. Tri-State Telephone & Telegraph Co., 146 Minn. 247, 250, 178 N.W. 603, 604, we said:

'The right of appeal is purely statutory. The Legislature may give or withhold it at its...