(dissenting). The plaintiff owns the railway bed, the right of way, a strip of land 100 feet wide on the northern boundary of sections 10, 11, and 12, in township 132 of range 53. It is just 30 miles due west of the city of Wahpeton, on the railway from Wahpeton to Oakes. In 1906 and 1907, under statutory proceedings for the construction of a tricounty drain, against said roadbed, special benefits exceeding $1,000 a mile were assessed against the strip of land in each section. From a judgment confirming the same, with interest and costs, the plaintiff appeals.
Council for plaintiff contends that from the beginning to the end there was no compliance with the statute; that the special assessment is grossly excessive, and that is true.
The drain is about one half in Eansom county and the other half in Sargent and Eichland counties. The drainage board estimated the entire cost of the drain at $60,000, and apportioned the share of cost to each county in decimal figures thus: Eansom county, .5032; Sargent county, .2093; Eichland county, .2875.
The apportionment seems to be entirely fair, and it is of no consequence that in Eansom county the drain consists of two parts, one running northerly and the other southerly. In Sargent county the total length of the drain is 4J miles. In Eichland county it is 5 miles. While the total cost of construction in the three counties was estimated at $60,000, by some means, possibly by the charge of excessive fees, it amounted to $72,000. In this, as in all drainage cases, a large portion of the cost is for commissioners’ fees. Thus in lump sums we find these charges: December 2, 1905, Commissioner Blake, services, $64.-30; March 1, 1906, Commissioner Blake, services, $21; March 1, 1906, K. N. Myhre, services, $76.20; March 30, 1906, D. E. Blake, services, $14.75; March 30, 1906, K. N. Myhre, services, $25.70; October 5, 1906, K. N. Myhre, services, $60.45; October 5, 1906, D. E. Blake, services, $58.90.
In the Cass County Drainage Case, 11 N. D. 494, 92 N. W. 841, the total cost of the drain was $42,000, and the commissioners’ fees and expense about $15,000.
On the books it appears that on August 27, 1906, a certain sum was *170charged against each tract of land on the estimate of the total cost. Then on June 1, 1907, and before the drain was completed, about 10 per cent was added to the original sum charged. Then the board made a list of the lands, with the amount charged against each tract, and to the same annexed a warrant to the county auditor. It required him to extend on the tax list for the year 1907 the amount set opposite to the description of each tract of land. That was done under § 1831, Statutes of 1905, as amended in 1907. Of course the amounts were extend.ed as per the decree of the commissioners, acting as judges in their own case, and allowing themselves large lump sums, and this was done without any pretense of notice or a hearing. Upon the legality of such proceedings several decisions have been made by the supreme court of this state without due consideration.
The case of Erickson v. Cass County, 11 N. D. 498, 92 N. W. 841, is a blind leader of the blind. Holding the procedure conclusive, the court said: “It is well settled that where provision is made Tor notice to and hearing of each proprietor at some stage of the proceedings upon the question of what proportion of the taxes shall be assessed upon -his land, there is no taking of his property without due process of law.’ ” Now that is not true and the cases cited do not sustain it. The mere proportion of expense, graft, and loot that may be charged is of less consequence than the amount. The cases cited do merely sustain a special assessment on regular proceedings, when the owner has a chance to appeal from the amount or when the amount is confirmed by a court, after due notice. However, in this case it is not seriously contended that there ivas a compliance with the requirements of the statute. There was neither a proper pelilion for the drain, nor a legal notice of the apportionment of the benefits and the letting of contracts. Nevertheless, it is a fact that the drain was a necessity, and it was fairly well constructed, and it does serve a good purpose, and it is of special benefit to the roadbed and roadway of the plaintiff. And though the plaintiff has not had legal notice, there was no laclo of actual notice. Each day while the drain was being constructed opposite to its roadbed, the plaintiff’s trains were run back and forth within 200 feet of the construction. '
Now, regarding the review of special assessments in such cases, whatever may have been the previous rulings, it is now clearly made *171the duty of the court to review the levy and assessment and to determine the just amount of the special benefits. Act March 14, 1919. That is the only question here presented. The evidence on this point is not all that it should be, because the parties relied too much on technical points. However, there is some evidence, and it is probably better for both parties to end the litigation than to remand the case for additional testimony.
It does appear that each mile strip contains only 12-¿ acres, and the assessment charged against the 12-¿ acres is the same as that charged against any 640 acres of adjacent land. For ten years, commencing with 1906, the average assessed valuation of the roadway from Wahpeton to Oakes toas $500 a mile, and it is certain that at the time of the construction of the drain and at all times since then the real value of the roadway in question — the average value in said years — did not exceed $1,000 a mile, or $80 an acre. And we may well take official notice of the way in which railroads are constructed and the fact that such construction through the low land in question did much to drain it. The roadbed was made by throwing the earth onto the center from each side of the road, and thereby making a ditch on each side. In arguing counsel say that in the big drain the waters run east at the rate of 4 miles an hour. If that is true, then the two railway ditches must have carried off a large flow of water which drained into Elk creek.
From the testimony of Commissioner Blake it appears that in making the special assessment the commissioners considered not only the actual benefits to the roadway and roadbed of the company, but also the indirect benefits likely to result from improvements in the country, giving the company more freight to haul. As the assessment is grossly excessive and out of all proportion to the assessments on other properties, it must be that it was made on some wrong basis of remote or speculative benefits. Though it is certain that the drain has been a real and substantial benefit to the roadway and roadbed yet and of course, there is no possible way of determining the real benefits, and it would still be a matter of conjecture and opinion though we should hear the testimony of a thousand witnesses. Bearing this in mind and all the facts and circumstances, we conclude that the real and special benefit is approximately $300 a mile, or $900 for the 3 miles, and that plaintiff should pay the same, with interest at the *172legal rate from March 1, 1908, and that neither party should recover any costs on this action, because neither party has prevailed and each party has made a large amount of needless cost. Hence, judgment should be' that the special assessment be reduced to $900 on the roadway in said three sections, and that defendant do have and recover from the plaintiff the sum of $900, with interest from March 1, 1908.
As there was no compliance with the law, so as to give th.e drainage commissioners jurisdiction, their decision has no evidential force. It is cc-rum non judice. Hence, the burden was on the county to charge the plaintiff by showing the amount of the actual benefits to its roadway. If there is no evidence to show the benefits, then the case should be remanded for further evidence.