In Re Establishment of Judicial Ditch No. 75

1 Reported in 215 N.W. 204, 216 N.W. 229. Certiorari to review proceedings for the establishment and construction of judicial ditch No. 75 of Polk county under the provisions of L. 1925, p. 585, c. 415. The petition for such proposed drainage system was signed by 46 qualified petitioners and filed May 11, 1926. A preliminary hearing upon the petition was had on July 16, at which time testimony was taken and the petition was considered and held sufficient to authorize the court to proceed with the improvement. Accordingly an engineer was appointed to make a survey of the proposed system and report his doings as provided by law, and the hearing was adjourned to August 6, 1926, at which time certain of the petitioners asked leave to withdraw their names from the petition, which was denied. Viewers were appointed and a final hearing was had before the court on January 24, 1927, when all parties were given opportunity to be heard for or against the establishment and construction of the proposed system. Thereafter the court made and filed its order establishing such drainage system in accordance with the report of the engineer and assessing benefits and awarding damages as provided in the viewers' report. The contention of the relator is that the trial court was without jurisdiction to act in the premises for the reason that the petition was not signed by a majority of the resident owners of the lands described therein nor by the owners of at least 51 per cent of the area of land described in the petition; that the lands likely to be affected by or assessed for the improvement were not described in the petition; and that benefited lands were omitted from the assessment. The source of the proposed ditch is on the east line of section 1 in the township of Tabor and extends west on the town line between the townships of Tabor, Northland and Esther on the south, and Farley, Sandsville and Higdem on the north, outletting into the Red River of the North on section 5 in the township of Esther. Branch No. 1 of the proposed system extends from a point on the north *Page 297 line of section 4 in the township of Tabor southeasterly to and across section 24 in that township. Thirty-five of the petitioners are residents of the townships of Tabor and Farley and own land adjacent to the line of the proposed ditch. Eleven of the petitioners own land adjacent to the ditch, west of the two townships last named. County ditch No. 42 has its source in the northeast corner of section 24 in the township of Sandsville and extends west on the section line, connecting with judicial ditch No. 1, which extends west on the section line through the township of Higdem and has its outlet in the river. To the south of the proposed ditch is county ditch No. 2, which has its source on the section line between sections 23 and 26 in the township of Tabor and extends due west on the section line to the river. It will be observed that ditch No. 42 and ditch No. 1 are three miles to the north and parallel with the line of the proposed ditch, and county ditch No. 2 is four miles to the south and parallel with the line of the proposed ditch. These ditches are not of sufficient capacity to carry off the water discharged into them from the east, and a large area is overflowed annually. The purpose of constructing ditch No. 75 is to supplement these two existing ditches, in the belief that the three will have sufficient capacity to carry off the water brought from the east by other ditches and will afford proper drainage to the flooded area. The petition is sufficient in form and substance to give the court jurisdiction and to authorize the establishment of the proposed system as asked for therein. The engineer's report recommends and the final order of the court establishes the proposed system as asked for in the petition. No branches are added nor extensions provided for. The source, general course and outlet are as asked for in the petition which was signed by the owners of not less than 51 per cent of the land described therein. On August 6, 1926, and thereafter, a number of signers asked leave to withdraw their names from the petition, prior to which time the court had received and acted upon the petition by appointing an engineer and directing him to make the preliminary *Page 298 survey required by the statute. The request came too late. Petitioners cannot withdraw their names after the petition has been presented to the court and the court has taken jurisdiction of the matter and acted thereon. Seibert v. Lovell, 92 Iowa, 507,61 N.W. 197; Sim v. Rosholt, 16 N.D. 77, 112 N.W. 50,11 L.R.A.(N.S.) 372. But they may dismiss the proceeding in the manner provided in § 112 of the act. No attempt was made to dismiss under this section. The claim of the relator that the petition is required to describe the area likely to be affected by the construction or assessed for the cost of the improvement cannot be sustained. Section 3 of the act prescribes what the petition shall contain. It requires the petition to describe "the lands over which the proposed ditch or improvement passes." It does not require the petition to describe any other lands. The petition in question describes the lands over which the proposed ditch passes, and does not purport to describe any other lands. As it complies with the statutory requirement in this respect, it is sufficient. In re County Ditch No. 34, 142 Minn. 37, 170 N.W. 883; Sellen v. County of McLeod, 165 Minn. 74, 205 N.W. 625. As it is not claimed that the proceeding is brought under § 90 of the act, providing for consolidation of drainage systems, we have no need to consider the provisions relating to such consolidation. The relator urges that a large area benefited by the proposed ditch is omitted from the assessment. The benefited lands are to be ascertained and determined by the viewers (§ 17), who are required to assess all benefited lands (§ 24). The viewers made and reported their assessment, and after a full hearing it was approved and adopted by the court. As so approved, it is presumed to be correct until the contrary is shown. The question of what lands are benefited is a question of fact to be determined by the viewers, and upon this incomplete record we cannot say that they adopted a wrong principle or reached a wrong conclusion. Even if lands that ought to have been assessed were omitted, it does not go to the validity of the order establishing the ditch or making the assessment. *Page 299 Section 32 of the act gives any person aggrieved the right to appeal and have his benefits and damages determined by a jury, and also gives him the right to have the benefits and damages to lands other than his own determined on such appeal. The action, if any, taken under this provision is not before us. Furthermore, the lands claimed to have been omitted are not described, and the owners thereof are not named, and such owners are not parties to this certiorari proceeding. The court had jurisdiction to establish the proposed ditch and cause it to be constructed, and the order appealed from is affirmed. ON APPLICATION FOR REARGUMENT. On October 28, 1927, the following opinion was filed: