Peterson v. Roberts County

GATES, J- The complaint in this case alleges ownership' of S. E. (4, 4-122-49 in the plaintiff; the amount of •damages claimed; and the filing of the claim therefor with the county board of Roberts county. Paragraph 4 of the first cause of action is as follows: "That in the year 1908 the defendant Roberts county, by its agent, Knorr Bros., without the authority of law and without the permission or consent of this plaintiff and against his protest and with force and arm-s, entered upon the land of the ‘plaintiff herein described, and took possession of a, large strip of land extending through same, and constructed thereon and through a large ditch or drain same being regularly known as the 'Lake & Lee Ditch’ cutting plaintiff’s land in two and throwing' a great deal of stones and dirt upon both sides of said ditch and covering- up and destroying a large ^portion of plaintiff’s land.” The second cause of action shows damages by deepening, enlarging, and widening said ditch. [ 1 ] Paragraph 7 of the complaint is as follows: “That the defendants Gold Bro-s. Security 'Company, Jno A. Munro, Hienry. Osterloh, and W. J. Maly are owners of large tracts of land adjacent to what is known as Bull Plead Lake and which land was greatly improved by the construction of said ditch-; -llhat prior to the ccmstruction of said ditch the said defendants entered into a written obligation wherein and whereby they agreed to and with said Roberts county that,' if the said county would construct the said ditch, the said defendants would save the said county of Roberts whole and harmless from any and all damages it might sustain by reason of -the -construction of the said ditch.” Upon the trial the court sustained -the objection of the defendants mentioned in paragraph 7 to'the introduction of evidence as to them upon the ground that the complaint did not state a cause of action as to them. It is clear that -such ruling was correct because there was no privity between the plaintiff and said defendants under the agreement alleged in said paragraph. [2] The answer of the defendant -county admits the corporate capacity of the county and of the Gold Bros. Security Company, and adm-its that plaintiff owns the land and denies “all of the allegations of the complaint and of each cause of action therein [444] except as hereinbefore admitted.” For a further answer and defense the defendant county sets up the proceedings for the establishment and construction of the so-called Fake & .Fee Drainage Ditch, which facts, if they had been proven as alleged, would appear to have constituted a full and complete defense to' the plaintiff’s cause of action. One of the allegations of such further answer and defense is that the said Knorr Bros, entered upon the lands of plaintiff and constructed the said ditch pursuant to contract made with the said county in said drainage proceeding. Unless this and other admissions in the further answer of the defendant county may be considered as supplying proof that Knorr Bros, were working under the employment of the county, there is no sufficient evidence to connect the defendant Roberts county with the acts -of Knorr Bros., specified in the complaint. We have carefully searched the transcript of the testimony, and the following testimony of plaintiff, on page 54 qf such transcript, elicited on cross-examination, is the only thing we have been able to find which in any way tends to connect the defendant county with the acts of Knorr Bros., viz.: “Q. You saw them digging and you saw Knorr .Bros, there? A. Yes, sir. Q. You knew they were working for the county, didn’t you; you knew the county had hired therp to dig the ditch? A. Yes, sir.” This evidence, together with the claim for $25 damages (Exhibits 3 and 4) allowed by the county, constitutes the evidence tending to connect the defendant county with the acts of Knorr Bros, complained of. In tire case of Mattoon v. F. E. & Mr V. Ry. Co., 6 S. D. 301, 60 N. W. 69, this court said: “This court has held, in several cases, that an admission in one defense in an answer cannot be referred to as supplying proof of an allegation in the complaint, when there is a general or specific denial of the allegations of the complaint.” In that case, however, the answer denied onljr such matters as were not “hereinafter ‘specifically admitted or qualified.’ ” • . It is our opinion that the admissions in the further defense of the defendant county in regard to the employment of Knorr Bros, were unavoidably made (McLaughlin v. Alexander, 2 S. D. on page 237, 49 N. W. 99) in order to properly present that defense, and that the plaintiff cannot avail himself of such admissioils in order to supply omissions in his proof. [445] [3] After the plaintiff had rested and the defendant county had moved for a direction of the verdict, the plaintiff asked for leave to open the case to introduce the drainage proceedings, in evidence, “for -the purpose of showing that no notice was given to the plaintiff, apd that no condemnation proceedings were ever had and no order was ever made determining the plaintiff’s damages or assessing his benefits upon this land, and that the plaintiff never had any opportunity to appeal from any order for the reason that no such ordér was ever made.” The purpose for which this request was made did not include the connecting of the county with the acts of Knorr Bros. The court denied that motion and gr'anted the motion of the defendant county for the direction of the verdict. It appears from the transcript that the court thereupon stated to the jury as follows: “The court is of the opinion that the plaintiff cannot recover in this form of an action, and if he could recover in any action it would have to be in a different form of action, and that he is not entitled to recover under the evidence introduced in this case.” • During the course of the trial (Transcript, pp. 108, 109), the plaintiff sought to introduce in evidence Exhibit 6.- This was an undertaking which recited that the present plaintiff and one Eassen had brought an action in injunction to restrain the county and one Hayney from entering upon the lands of plaintiff and digging a ditch thereon; that a temporary injunction had been issued; and that this undertaking was exeouted for the purpose 'of securing the vacation of such temporary injunction. This undertaking was in the sum of $2,000 and was signed by the parties named as defendant in paragraph 7 of the complaint in this action and bound the obligors to pay to this plaintiff Peterson and said Lassen, any and all sums that might be recovered against them in said action. That action was pending and undetermined at the time this undertaking was offered in evidence, and it was therefore property excluded in this case; but it wotild seem therefrom that this plaintiff’s claim for damages could be properly taken care of in that case. [4-6] The only document pertaining to a ditch proceeding, that was offered in evidence, - was a petition signed by appellant and others. (Exhibit 5). The route of the drainage ditch therein petitioned for is as follows: “Beginning at the southwest corner of [446] section ii, township 123, rknge 50; .thence in a southeasterly direction through section 10, 14, 13 and'12, township 123, range 50 and 7, 18, 17, 21, 22, 28 and 27, in township 123, range 49; thence through the Dry Run to Big Stone Lake or thi ought Bull Head Lake to the Whetstone, whichever may be found the most practicable.” From an examination of the map it appears that, if the ditch complained of is a part of the one petitioned for, the land of the plaintiff comes within the description “thence * * * through Bull Head Lake to the Whetstone.”' No description of lands is given otherwise than as above set forth, nor is it apparent where the “Whetstone” is, or what it is. There is nothing in the case, except inferentially, to show that the ditch petitioned for is the one about which appellant complains. It is reasonably clear that the appellant has suffered some damage at the hands of Knorr Bros. The chief damage proven is in regard to the disposal of rock and other material taken from the bed of the ditch. If it be assumed that they were acting under contract with the county, it does not appear that such acts inflicting damage were within tile scope of their contract. If the}'' were acting within the scope of their contract, then the refusal of the court to open the case and allow the appellant to1 offer the drainage proceedings in evidence would appear to be an abuse of discretion. Suppose the case be reversed on that ground or upon the ground that the court erred in directing 'the verdict, what disposition can be made of the costs on appeal,? The county is not' liable therefor out of its regular funds. There is nothing to show that there is any drainage fund out of which it could be paid, nor that the county is in position to levy an assessment against any property to pay such costs. If it be assumed that Knorr Bros, were acting under direction of the county board and it should appear that the acts of the board were unauthorized, then the individual members of the county board might be liable, but they are not parties to this case. A careful review of the evidence convinces us that the only cause of action proven on behalf of plaintiff is against Knorr Bros.; and they were not made defendants in this case. We are reluctant to decide a case upon grounds not raised in the briefs. In this case, however, the defendant is a public corporation. It is not liable for the payment of damages that might [447] have been recovered in this case except in so far as it has funds in its control derived from the drainage project, or in so far as it might hereafter cause an assessment to be levied to pay for such damages. ' Nothing has been shown that would bring the liability of the county within these exceptions; nor can we assume that it would have been shown if the drainage proceedings had been received in evidence. In view of the unsatisfactory condition of the record and in view of the pendency of the other action, in which it would seem that appellant can get relief, we are of the opinion that the judgment of the trial court should be affirmed. _ ,