Turnquist v. Cass County Drain Com'rs
| Decision Date | 12 November 1902 |
| Docket Number | 6731 |
| Citation | 92 N.W. 852,11 N.D. 514 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Action by Andrew Turnquist against the Cass county drain commissioners and others. Judgment for defendants, and plaintiff appeals. Affirmed.
Judgment affirmed. Respondents, recovered their costs and disbursements.
M. A Hildreth, for appellant.
Ball Watson & Maclay, for respondents.
This is one of nineteen cases instituted in the district court of Cass county by the owners of real estate to vacate and enjoin certain assessments made by the drain commissioners of that county upon their lands to defray the cost of constructing two drains known as "Rush River Drain No. 12" and "Harwood Drain No. 2." The cases were consolidated in the district court for the purpose of trial, pursuant to a stipulation of counsel, which was made of record in each case, and under the terms of which the right to a separate appeal was reserved to each of the several plaintiffs. The trial court denied the relief sought, and entered judgment in each of said actions in favor of the defendants, and awarded to them an attorneys' fee of $ 85 in each case, in addition to the regular statutory costs. Thirteen of said plaintiffs perfected appeals to this court, and the same are now pending for determination upon a demand for trials de novo. A statement of case is on file in each case. The statements are identical, each containing all the evidence offered at the trial of the 19 cases as consolidated. The complaints in the several actions are the same, except as to the names of the parties plaintiff, descriptions of land assessed, and amounts of the assessments. The judgments entered by the trial court are the same in all the cases. In this case the appellant, Andrew Turnquist, has served and filed a printed abstract, which contains all of the evidence offered at the trial as consolidated, and has also filed a printed brief under the statute and rules of this court. No printed abstract or briefs were served or filed in the other 12 cases, in which Nels Peterson, Ole Monson, Robert J. Percy, as guardian, Robert J. Percy, Swan Monson, Ellen B. Potter, A. F. Anderson, James Thompson, Andrew Hagman, Eric Peterson, Charles P. Safe, and Charles F. Anderson are appellants. Counsel for respondents waived the filing of such abstracts and briefs, and by stipulation of counsel, on file in each case, and with the consent of this court, the abstract and brief on file in this case is accepted as a proper record for the determination of the other 12 appeals. The questions involved in the cases are the same. No facts are pointed out in the brief which distinguish the other cases in any way from this case. The decision of this case will, therefore, control the decision in each of the other 12 appeals.
The complaint alleges four separate grounds as a basis for the relief sought. They are as follows: (1) That the order establishing the drains, and all subsequent acts of the board of drain commissioners, were void, "for the reason that said board failed to examine personally the line of the proposed drain before the passage of the said order, as required by section 1447, c. 79, Laws 1899"; (2) that the assessments are illegal for the reason that the board "failed to give the notice for the review of such assessments, as prescribed in section 1454, c. 79, Laws 1899, and that they failed to publish said notices in a newspaper of general circulation in the county, and that they failed to post five printed notices of the time and place of such review, as required by such section 1454"; (3) that the board of drain commissioners included in the cost of Rush River drain No. 12 certain sums which had been expended upon "Rush River drain No. 1," which was a former and abandoned drain; and (4) that the plaintiff's lands are not benefited. The defendants' answer denied each of the foregoing allegations, and alleged that the plaintiff is estopped from obtaining relief at the hands of a court of equity, for reasons to which we will hereafter refer; and further alleged that the assessments sought to be enjoined had been passed upon and determined by a competent and lawful tribunal, viz., the board of drain commissioners, and upon due notice to all persons assessed. Upon the issues thus presented the trial court found: (1) "That the drain commissioners examined the line of said drain before establishing the same"; (2) "that they gave notice of the review of the assessments in conformity with the law"; (3) "that the drain commissioners did not include in the expense of the construction of Rush River drain No. 12 any expense of Rush River drain No. 1"; (4) "that the lands of the plaintiff are benefited directly and indirectly by Rush River drain No. 12 and Harwood drain No. 2"; (5) "that the plaintiff knew that said drains were being constructed, but the plaintiff failed to take any steps to interfere with the construction of said drains, and allowed the said Rush River drain to be constructed at a cost of $ 12,500, and the Harwood drain No. 2 at a cost of $ 14,700"; (6) "that the defendants are entitled to recover from the plaintiff a reasonable sum as attorneys' fee in the sum of $ 85, in addition to the costs and disbursements allowed by law." The court concluded, as matter of law, that the assessments were valid, and, further, that the plaintiff is estopped from alleging the invalidity of such assessments for the purpose of defeating the collection of the same.
This case was argued and submitted with the case of Erickson v. Cass Co., 11 N.D. 494, 92 N.W. 841. That case related to assessments made to defray the cost of Argusville drain No. 13, and involved a determination of many of the questions presented in this case. The reasons adopted to sustain our conclusions are fully set forth in the opinion just handed down in that case, and need not be restated at length.
Turning now to the consideration of the questions urged upon this appeal, we may say that counsel for appellant does not contend in his brief that the trial court erred in finding that the board inspected the route of the drain, or in finding that the statutory notice of hearing upon assessments was given, or in finding that no part of the cost of the prior abandoned drain was included in the cost of the drains here in question; neither does counsel attack the correctness of the finding that plaintiff's lands are benefited. On the contrary, counsel relies upon legal questions only. They are as follows: (1) The unconstitutionality of certain provisions of the drainage law; (2) the alleged invalidity of the assessments, "because two members of the board of drain commissioners only acted with reference to many important matters"; (3) the unconstitutionality of chapter 25, Laws 1901, authorizing the allowance of additional attorneys' fees. The particular parts of the law...
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