Sim v. Rosholt

• Decision Date: 09 May 1907
• Citation: 16 N.D. 77,112 N.W. 50
• Parties: SIM et al. v. ROSHOLT.
• Court: North Dakota Supreme Court

16 N.D. 77

112 N.W. 50

SIM et al.

v.ROSHOLT.

Supreme Court of North Dakota.

May 9, 1907.

Syllabus by the Court.

Under section 1821, Rev. Code 1905, relating to the establishment of drains, the jurisdiction of the board of drain commissioners to order such drain is acquired by the filing with the board of a petition as therein required, and after such jurisdiction is thus acquired, and the board has taken action thereunder, it cannot be divested of such jurisdiction by the action of the petitioners in withdrawing their names from the petition.

At the conclusion of the testimony, both parties moved for a directed verdict, there being no issue of fact involved. The trial court granted the defendant's motion. Subsequently plaintiffs moved for judgment notwithstanding the verdict, which was, on April 11, 1906, denied. Thereafter, and on June 29th, the trial court made an order reversing its previous ruling and ordering judgment in plaintiffs' favor notwithstanding the verdict. Held, that the court had jurisdiction to make the latter order, and that no error was committed in so doing.

Appeal from District Court, Traill County; Chas. A. Pollock, Judge.

Action by Joseph Sim and others against John K. Rosholt. Judgment for plaintiffs, and defendant appeals. Affirmed.P. G. Swenson and John A. Sorley, for appellant. Theo. Kaldor and John F. Selby, for respondents.

FISK, J.

This is an appeal from a judgment of the district court of Traill county, rendered in favor of plaintiffs, as members of the board of drain commissioners of said county, condemning a right of way for a drain across defendant's land. It was stipulated at the trial that defendant's damages for the taking of the land sought to be condemned was $200, and the sole question in dispute was as to whether or not the plaintiffs had jurisdiction to construct the proposed drain; it being defendant's contention that while the petition for the construction of the drain, when first presented to the board, contained the requisite number of signatures, prior to the final action of the board in ordering the construction of such drain, enough of such signers or petitioners had asked to withdraw their signatures from the petition to reduce the number of petitioners below that required by law, and that by such request the board was divested of jurisdiction to order the drain constructed, and hence that its order to that effect made on July 7, 1905, was illegal and void. Defendant contends, as we understand him, that the petitioners for this drain had the legal right to withdraw their names from the petition at any time prior to July 7, 1905, the date of the final order establishing the drain. If he is correct in this contention, then a verdict should have been directed in his favor by the trial court; otherwise it should have been directed in plaintiffs' favor. The petition for the establishment and construction of this drain was presented to the board on June 29, 1904, and contained the signatures of 11 freeholders, and that at a meeting of the board on said date such petition was formally received and acted upon by the board, and such board made a determination that such petition was signed by the requisite number of qualified petitioners, and ordered said petition to be received and placed on file. The board thereafter fixed June 30, 1904, as the date for it to examine the line of the proposed drain, which was done, and a report made changing in some respects the course of such proposed drain, and at its meeting on July 1, 1904, the board unanimously decided that the proposed drain was needed, and on motion it was ordered that the county surveyor be directed to prepare a survey of such proposed drain in accordance with the changes recommended by the board, and to make report of such survey at the earliest possible date. At a meeting of the board held on July 19, 1904, six of the petitioners presented to the board a written document signed by them stating that they withdraw their names from the petition; but the board apparently ignored such attempt to withdraw.

We are squarely confronted with the question, therefore, as to the effect upon the jurisdiction of the board of the attempted withdrawal from the petition of the six persons, as above stated. Section 1821, Rev. Code 1905, relating to drains, provides that the initiatory step to be taken to establish a drain shall be the presentation to the board of drain commissioners of a petition in writing, and if the chief purpose of the drain is the drainage of agricultural, meadow, grazing, or other land, the same shall be signed by at least six freeholders whose property shall be affected by the proposed drain. It also provides that, upon the presentation and filing of such petition, the members of the board shall personally proceed to examine the line of the proposed drain, and, if in their opinion it is necessary, they shall cause a survey of the line thereof to be made and profiles, plans, and specifications to be prepared, also an estimate of the cost thereof, and a map or plat of the land to be drained, etc. These preliminary steps were commenced, but how far they had progressed prior to the time these six petitioners served notice of the withdrawal of their names from the petition does not clearly appear, nor in our opinion is this material. If these persons had a right on July 19th to withdraw their names from the petition, and by so doing oust the board of jurisdiction to proceed further, then we think they had such right at any time prior to the final action of the board in ordering the drain established, and such we understand, as before stated, to be the contention of appellant's counsel. Numerous authorities are cited in appellant's brief in support of this contention. These are: Mack v. Polecat Drainage District, 74 N. E. 691, 216 Ill. 56;Littell v. Board of Supervisors, 65 N. E. 78, 198 Ill. 205;Black v. Campbell, 13 N. E. 409, 112 Ind. 122;La Londe v. Board of Supervisors, 49 N. W. 960, 80 Wis. 380;State v. Board of Supervisors, 60 N. W. 266, 88 N. W. 355;Hays v. Jones, 27 Ohio St. 218;Hord v. Elliot, 33 Ind. 220;Slingerland v. Norton, 61 N. W. 322, 59 Minn. 351; and State v. Commissioners, 4 N. W. 373, 10 Neb. 32.

Upon examination it will be found that most of these cases relate to petitions for the removal of county seats, or are based upon a statute different from ours, and it will also be found that they do not support the right of petitioners to withdraw their names after the sufficiency of such petition and the qualifications of the petitioners have been passed upon by the board authorized to act thereunder. On the contrary, they will be found to support respondents' theory that, after the board has passed upon the sufficiency of such petition, it is thereafter too late to withdraw therefrom. In Black v. Thompson, one of the cases relied upon by appellant, it was held that, “if the dissatisfied petitioners...