Certiorari to the district court of the Tenth judicial district to review the proceedings had in the matter of Judicial Ditch No. 2 of Houston county.
In 1922 a petition in due form was filed with the clerk of the district court of Houston county and an engineer appointed to make a survey and report of the proposed ditch. The survey was made and the report thereof filed in November. A hearing upon the petition and report was duly called and held on December 9, 1922, which consumed three days' time. The interested parties appeared with their counsel and much testimony was adduced, at the conclusion of which the presiding judge announced, in open court, that it was his opinion that the matter should be resubmitted to the engineer for a further survey and report in order to determine whether the proposed ditch might not be constructed wholly along one side of the right of way of the Chicago, Milwaukee St. Paul Railway Company and thereby avoiding crossing such right of way, and also avoiding the leaving of a narrow strip of ground between the ditch and the railway right of way. The hearing was then terminated without any further proceedings.
The proceedings were before Judge John F.D. Meighen, whose term of office was to expire on January 1, 1923. On December 28, 1922, in closing his official work, he filed an order in said ditch proceeding, which in form was such as to establish the proposed ditch as detailed in the report of the surveyor, as filed prior to the hearing of December 9. Paragraph 7 of the order was as follows:
"That the proposed improvement set forth in said petition, as modified and recommended by the engineer in his said report on *Page 386 file in said clerk's office, is practical; that there is necessity therefor; that it will be a public benefit and promote the public health; that it has an outlet of sufficient capacity; that the assessable benefits to result therefrom will substantially exceed all costs, damages and expenses of said ditch from its initiation to completion; that it is feasible and a public necessity."
Paragraph 11 of the order is as follows:
"In making said detailed survey and report said engineer shall investigate and report upon the practicability of constructing the main line of the proposed ditch parallel with and adjoining the right of way of the Chicago, Milwaukee St. Paul Railway Company in so far as such construction will not interfere with the efficiency of the proposed improvement, and shall further investigate and report upon whether the proposed ditch can be constructed wholly upon one side or the other of said railroad right of way, without interfering with its efficiency."
Nothing was done, after the filing of such order, toward the carrying out of Judge Meighen's order with reference to a further survey and report, nor was any notice of the filing of the order of December 28 given to any of the objectors to the ditch or to their attorneys. In November, 1923, the four motions here involved were made to Judge Peterson, the successor to Judge Meighen, asking that paragraph 7 be stricken from the order of December 28 upon the ground that the same was placed therein by inadvertence and mistake. The motions were submitted upon the moving papers. No oral testimony was taken. As stated by the judge, the order correcting the order of Judge Meighen was based upon the moving papers, statements of counsel and their oral arguments.
The ditch proceeding was under the act of 1917. At the preliminary hearing on December 9 a large number of witnesses were examined, including engineers upon both sides of the controversy. Judge Meighen was not satisfied as to the feasibility of the project as planned and so expressed himself to all of the parties present in court. The proposed route of the main ditch crossed the right of way twice and left a narrow strip of land, nearly its entire distance, *Page 387 containing about 88 acres, which would be of but little use without the building of a number of bridges across the ditch which would be, if constructed according to the plan, about 60 feet wide. The motions to have paragraph 7 stricken from the order were submitted without any attempt to challenge any statement made in the moving papers.
Relator's contention is, as we understand, that under the provisions of G.S. 1913, § 5526, as amended by L. 1917, p. 695, c. 441, § 5, if the court had not found as recited in paragraph 7, the proceeding should have been dismissed. We do not so construe the statute. If the judge was not satisfied as to the feasibility of the project, as outlined in the report of the engineer, it was his duty, in the exercise of a fair discretion, to resubmit the matter to the engineer for further survey and report, so as to inform the court and enable the judge to arrive at a final conclusion as to the feasibility of the improvement.
As stated by counsel for relator, the provisions with reference to the feasibility and the benefits and costs and all other findings of paragraph 7 are contained in the engineer's report. This is the same report which was before the court at the hearing on December 9. It has never been changed, but it was not satisfactory to the court, and the objections thereto were clearly pointed out by the judge at the time and the hearing ended. It might have been adjourned to a future date to enable the engineer to make further survey and report. The order under review points out very clearly that it was granted upon the ground of mistake in the order of December 28, 1922. It does not appear that there have been any intervening rights of third parties that might be affected by the correction.
Whether there was a mistake in the order of December 28 was a question of fact, to be determined by the present judge upon the showing made, and. if there was a mistake made, it may be corrected. Section 9283, G.S. 1923, provides that the court may, for good cause shown, modify or set aside its judgments, orders or proceedings, whether made in or out of term, etc. It was found, as a matter of fact, by the court below, that a mistake was made, as *Page 388 contended for by the respondents, in the order of December 28. That finding is binding upon this court, there being nothing in the record requiring a different opinion.
Affirmed.