Statement.
Bronson, •!.Plaintiff seeks, through certiorari proceedings, to exclude certain land from the city of Bismarck. The facts are: Plaintiff petitioned the city commission of Bismarck to exclude the S. E. T} of see. 3, twp. 138, R. 80, from the city limits. The petition and affidavit therefor stated that the land involved consists of 100 acres within and bordering upon the city limits: that it is wholly unplatted and no municipal sewers, water mains, pavements and sidewalks, or other city improvements have been made or constructed therein; that there aro no legal voters residing upon such land; that it is used exclusively for agricultural purposes; that plaintiff has been the owner in fee thereof for more than three years, excepting the. Northern Pacific Railway right of way. In May, 1922, the city commission had a hearing upon the petition. A map showing the corporate limits was offered. From the evidence submitted, it appears that the right of way of the N. P. Ry. Co. is situated within and upon the eastern line of the land sought to lie excluded; that it is .51 of a mile, in length and comprises two acres within such land to he excluded. The commission found that the said southeast quarter was hounded fully on three sides and partially on tbe fourth sido by lands wholly lying within the city limits; that such land does not border upon tbe outer limit of tbe city except approximately one-half mile along the east line thereof; that the exclusion of such tract will leave the eastern boundary of tbe city in an unnat*27ural and inconvenient form and manner; that the exclusion of such tract will leave out of the city limits the entire .51 of a mile of right of way of the N. P. Ry. Co. which the plaintiff does not own. The city commission denied the petition.
In June, 1922, plaintiff instituted in district court, proceedings of certiorari concerning the action of the city commission.
An order to show cause was issued. Jn response thereto the city made answer and return, substantially setting forth the proceedings of the city commission hereinbefore stated. The trial court denied plaintiff’s application. Prom the order of denial, plaintiff has appealed.
Opinion.
The material portions of chapter 32, Laws 1921, applicable, provide : That when lands described in a petition bordering upon and within the limits of any incorporated city are wholly unplatted and no municipal sewers, water mains, pavements, sidewalks or other city improvements have been made or constructed therein, and this is made to appear upon the hearing of the petition by the city commission, it shall he the duty of the commission to disconnect and exclude such territory from the city.
A rough sketch of the relation of the city limits to the land sought to bo excluded is hereto attached. Therefrom it appears, and otherwise in the record, that the right of way of the Northern Pacific Railway Company extends along the eastern, limits of the city and upon and within the eastern limits of the land sought to be excluded; that, if such land be excluded, there will remain a portion of the' right of way o.f such railway to the north and to the south of such excluded land; that, in such event, the city limits will hound such excluded laud fully upon the north, the west, and the south; that there, will be left within the limits of the city and on the borders thereof, at its southeastern extremity, approximately 200 acres south of such excluded land which can be reached through railroad transportation only by crossing sncli excluded land and, otherwise, only by crossing such excluded land or circumventing the same.' In a manner, the exclusion of such territory will serve, in many ways, to make the land south of the excluded terri*28tory and within the limits of the city noncontiguous for jurisdictional and transportation purposes.
I am of the opinion that, within the intent and purview of the statute, the territory sought to be excluded may not.be considered bordering upon the limits of the city and that such territory purposed to be excluded falls within the reasoning of this court in Mogaard v. Garrison, 47 N. D. 468, 182 N. W. 761. The order of the trial court should be affirmed.
Birdzetil and Christianson, J'J., concur.