Woods Bros. Const. Co. v. Board Of Com’rs.

• Decision Date: 07 May 1929
• Docket Number: 6034
• Citation: Woods Bros. Const. Co. v. Board Of Com’rs., 55 S.D. 161, 225 N.W. 228 (S.D. 1929)
• Court: South Dakota Supreme Court
• Parties: WOODS BROS. CONSTRUCTION COMPANY, Appellant, v. BOARD OF COM’RS. OF YANKTON CO. and C. L. Lawrence, R. A. Wheeler, Merchants’ National Bank of Mandan, N. D., and Farmers’ & Merchants’ National Bank of Mandan, N. D., Intervenors, Respondents.

55 S.D. 161

225 N.W. 228

WOODS BROS. CONSTRUCTION COMPANY, Appellant,

v.

BOARD OF COM’RS. OF YANKTON CO. and C. L. Lawrence, R. A. Wheeler, Merchants’ National Bank of Mandan, N. D., and Farmers’ & Merchants’ National Bank of Mandan, N. D., Intervenors, Respondents. South Dakota Supreme Court Appeal from Circuit Court, Yankton County, SD Hon. R. B. Tripp, Judge #6034—Affirmed John J. Hess, Council Bluffs, Iowa E. E. Wagner, Mitchell, SD Attorneys for Appellant. H. A. Doyle, Clark & Henderson, Yankton, SD Attorney for Respondents. Opinion Filed May 7, 1929

BROWN, J.

This is an application for a writ of mandamus to compel the board of county commissioners of Yankton county to accept certain work in constructing retards for the prevention of erosion of the banks of the Missouri river, and to make an assessment against certain real estate alleged to have been benefited thereby. The application for the writ alleged that after the necessary preliminary proceedings a contract was entered into between plaintiff and the board of county commissioners, by the terms of which plaintiff agreed to construct approximately 400 lineal feet of standard current retards in the Missouri river adjacent to lands described in plans and specifications therefor, which plans and specifications are part of the contract and for which the board agreed to pay $50 per lineal foot in special assessment certificates or drainage warrants or bonds, as provided in Code, § 8465 et seq. In its answer the board alleges, in substance, that prior to any proceedings being had in relation to the matter at all, the plaintiff by its agents represented to the board, and to the petitioners for protection from erosion, that it was engaged in the business of building retards along the banks of the Missouri river; that it was the owner of and exclusively controlled certain patents for building retards and providing anchorage therefor; that by its method of construction it could successfully control the river and protect its banks from erosion; that its method was the only successful one; that it desired to obtain a contract for work in South Dakota for the purpose of demonstrating to the people of the counties lying along the Missouri river the success of its invention and devices used in the work; that, relying on such representations, the board entered into the contract referred to and would not have done so had it not believed said representations to be true; and that the work constructed by plaintiff would, in fact, protect the river bank at the places described in the contract from further erosion, but as a matter of fact said representations were not true, and the work done by plaintiff in pursuance of the contract was utterly worthless and did not prevent erosion in the slightest degree, but rather intensified and made the erosion worse than it was before. The answer further alleges that neither the Constitution nor the statutes of the state permit or authorize the construction of levees, dikes, retards, or other improvements on the banks of navigable streams to be undertaken by counties or drainage districts; and that chapter 193 of the Session Laws of 1921, relating to drainage of agricultural lands, under which it is claimed that the proceedings were had and the contract entered into, is unconstitutional and void.

C. L. Lawrence and R. A. Wheeler, two of the signers to the petition invoking action by the board, intervened, as did also the Merchants’ National Bank of Mandan, N. D., and Farmers’ & Merchants’ National Bank of Mandan, N. D., who are owners of land within the assessment area. The complaint in intervention of all of these interveners was in substance and effect similar to the answer of the board of county commissioners, alleging similar representations made to the petitioners, and reliance thereon, but for which no petition would ever have been signed and presented to the board.

A jury trial was had, and the court submitted and the jury answered four questions, as follows:

“1. It is stated as a defense in the answer of the Board “that at the time of the filing of the petition for this work, and prior thereto, the plaintiff company through its representative, stated and represented to the Board of County Commissioners of Yankton County, that said plaintiff company was engaged in the business of building dikes and retards along the banks of the Missouri River; that said company was the owner of and exclusively controlled certain patents which were used for the purpose of building retards and providing anchorage therefor; that the patents above mentioned covered what is known as the Bignell Concrete Pile; that by the use of said pile plaintiff was enabled to successfully build current retards in the Missouri River and to control said river, and its currents, for the purpose of protecting its banks; that said representative or agent of plaintiff company further stated and represented to the board of county commissioners that its method of bank protection along the Missouri River was the only successful one; that the plans therefor had recently been devised and that said plaintiff desired to obtain a contract for work in the state of South Dakota, for the purpose of demonstrating to the people of the counties lying along...