Freeman v. Trimble

Spalding, J.

(dissenting). I regret my inability to concur in the above opinion. I have no doubt the construction of the proposed drain would be of great benefit to the lands affected, but that fact furnishes no warrant for its construction under the present proceedings and law, unless such proceedings are in conformity with the law, and the law is applicable to the situation. It seems that the atmosphere surrounding the question is tainted with the impression that the law must provide a means of draining all lands needing drainage, and that it must be so construed as to apply to all possible contingencies arising, in the efforts made to furnish relief to the owners of such land. The remedy for its failure to make provision for all contingencies lies with the legislature, and not with the courts. I shall briefly state my reasons for concluding that the drainage law is not applicable to this case, but if it is the proceedings are not in conformity with the law.

*211. Tbe petition in this case, as applied, to Bottineau county, which is the county bordering on the International boundary, requests that the drain “commence at the south side of Bottineau county, in the center of the Mouse river channel, and dredge the river north to the International Boundary Line, thus reclaiming the low land adjoining the river on each side.” It will thus be seen that the petition established the starting point and terminus of the proposed drain at the south and north lines of Bottineau county respectively. Section 1821, Rev. Codes 1905, as amended by chapter 93, Laws of 1907, as far as relates to this subject, reads: “A petition for the construction of a drain may be made in writing to the board of drain commissioners, which petition shall designate the starting point and terminus and general course of the proposed drain.” Authority is given to the drainage commissioners, under the advice of the surveyors, to vary from the line described in the petition, but no authority is given to vary the source and terminus of the drain. I would not contend that a slight variation would invalidate the proceedings, but the question involved in this case is not any immaterial variation, but it. is as radical as though the drain were located by the commissioners 14 miles west of the Mouse river. The mouth of the drain proposed to be established is approximately 14 miles north of the International Boundary Line. The total cost is estimated at about $142,000. Of this it is estimated that $70,000 must be expended north of the International Boundary Line.

2. The statute, I think, requires title to the right of way to be obtained, unless it is in the state or other superior authority. The title to the right of way north of the boundary line has not been obtained, and is in a foreign municipality or owners over whom neither the drainage nor county commissioners nor the courts of this state have any jurisdiction, and this seems to me to render the proceedings regarding the 14 miles in foreign territory invalid. Sec. 1823, Rev. Codes 1905, as amended 1907.

3. Section 1842, Rev. Codes 1905, as amended in 1907, requires that the drain, when completed, shall be under the charge and control of the county commissioners. The contract entered into with the municipal authorities of Arthur provides that that part of the drain located therein, it being about 14 miles, and on which the successful *22operation of the whole project depends, shall be controlled by the municipal authorities of Arthur, but maintained by the commissioners, and this contract is in accordance with a by-law adopted by that municipality, in which it is provided that, when completed, the drain shall he controlled by that municipality, although the entire cost of the construction and maintenance thereof is to be borne by the owners of the land assessed in McHenry and Bottineau counties, North Dakota. I am of the opinion that this provision in the contract, under which alone it is proposed to construct the drain north of the International Boundary Line, is in direct conflict with the provisions of the Code cited.

4. The learned trial judge held that the fact that the .lands in the Municipality of Arthur were to be benefited, and not assessed, was a controlling ground for holding the proceeding invalid. The by-law adopted by that municipality describes the lands which are to be benefited therein by the drain, and which are not to share in the burdens. I would not contend that the fact that a small acreage was incidentally benefited would invalidate the proceeding, but here the amount is so great that it seems to me violative of the principles underlying the power to impose special assessments. They can only be imposed by reason of the property assessed being benefited by the improvement, and it is elementary that to render such assessments valid the assessments must be apportioned on all the property benefited in proportion to the respective benefits. Several thousand acres in the Municipality of Arthur entirely escape any share of the burdens, yet are shown to reap special benefits. The fact that such lands lie outside of the jurisdiction is the misfortune of the advocates of the establishment of the drain, and a misfortune which, under the existing statute, I see no legitimate way of providing against. Should their money be expended in the construction of the drain, and thereafter the Municipality of Arthur, for any reason, determine to exercise the control given it by the contract over the 14 miles in Canadian territory, or to exclude the commissioners from keeping it in repair, as it might do at any time should a disagreement arise, the contributors might find themselves in far worse position than now. In the majority opinion reference is made to authorities where lands were wilfully, arbitrarily, or intentionally omitted in making the assessments, and a distinction is drawn *23between those cases and the present, to show that the rule does not apply in this case; hut it occurs to me that the issue is the fact of omission rather than the purpose of the commissioners in making the omission. In the case at bar it is conceded that the omission was intentional, but it claimed that the fact that the lands omitted are outside the jurisdiction does away with the rule. I may, however, add that because of these lands lying outside of the jurisdiction, I am not ns strongly convinced that this point is fatal as I am of those which I .have before briefly referred to.

The authorities hold that laws of this nature must be strictly complied with and its terms strictly construed by the courts. This ought especially be true with reference to drainage laws, and particularly with reference to the drainage laws of this state by which almost unlimited powers are given to a board of drainage commissioners on the petition of only six property owners, who may be a very small minority of those required to bear the burdens. The law is subject to great abuse, and by many it is insisted that it is being very widely abused, and many owners of real property required to pay assessments alto gether out of proportion to the benefits derived. This may not be a question for the the courts to consider, but, if true, it furnishes a reason for requiring the terms of the statute to be strictly followed. I call attention to Hundley v. Lincoln Park, 67 Ill. 559, as a case which appears to me directly in point, and where the court held, on the establishment of Lincoln Park, in Chicago, that because money derived from assessments in one town was to be expended in another town, .the proceedings were rendered invalid. I think the judgment should he affirmed, and am authorized to say that Judge Carmody concurs herein except to paragraph 1.