Great Northern Railway Co. v. County of Grand Forks

Purr, District J. This is an appeal by tbe defendants from tbe judgment of tbe district court of Grand Forks county, quieting title in plaintiffs to certain lands as against certain alleged taxes levied and assessed against said land. Tbe complaint is in tbe usual statutory form set out in § 8147, Comp. Laws 1913; and tbe defendants, in their answer, set up tbe levy and assessment of these taxes. Tbe plaintiffs Nash Brothers, a corporation, and Swift & Company, a corporation, leased from tbe Great Northern Railway Company, a corporation, certain real property, to be used for nonrailway purposes, and it appears that this real property so leased was a part of tbe right of way of tbe Great Northern Railway Company. That tbe interests of tbe Nash Brothers, a corporation, and of Swift & Company, a corporation, are taxable in addition to tbe taxes paid by tbe Great Northern Railway Company on its right of way has been settled by this court in tbe case of Northern P. R. Co. v. Morton County, 32 N. D. 627, L.R.A.1916E, 404, 156 N. W. 226. Tbe question raised bere, however, is the validity of tbe taxes levied and assessed, it being tbe contention of tbe plaintiffs that tbe taxes are void because of tbe insufficiency of tbe description of tbe real estate. Tbe assessment record, in describing the real property to be assessed, sets out tbe description as follows: Name of owner Year of Description Lease Leased site on the Lot Block Occupied by-G. N. right of way, Nash Brothers 1913 Grand Dorks City Original town northeast 100 ft. 7 28 1912 “ “ “ “ « [9] —and the same record includes the assessment for the years 1908 to-1911 inclusive. The assessment of the tract leased by Swift & Company is similar for the years 1908 to 1913, inclusive, but describes it as 3,800 square feet, original town, opposite block 27. This is a fair sample of the assessment for the year 1913, and in the assessment for that year is included the assessment for the preceding years, as indicated. We hold the assessment to be void, because of the insufficiency of the description. There is nothing in the description of “the northeast 100 feet of lot 7, block 28” or.“3,800 square feet opposite block 27” to mark out the real property intended to be assessed. The northeast 100 feet may be a square 10 feet by 10 feet in the northeast corner, or it may be a portion of the northeast corner of the lots 100 feet in width or in depth. The same way with the expression 3,800 square feet. That might be a portion 60 feet by approximately 64 feet, or it might be 40 by 95 feet or in any other form. This court has already held in the case of Grand Forks County v. Frederick, 16 N. D. 118, 125 Am. St. Rep. 621, 112 N. W. 839, that a description of real property in lot 2 as “N. 23 x 200 ft. deep” was “void for indefiniteness, although the owner of the lot is correctly named in the assessment roll.” In that case the court said: “No point is given as the starting point for the dimensions 23 by 200 feet.” This court has held from time to time that land is not assessed unless described with sufficient accuracy for identification. It is not enough that the owner’s name be given correctly, or even that he may not be misled by the description. He may know that his land is intended to be assessed; yet, this does not relieve the authorities from proceeding regularly in assessment matters. See Wells County v. McHenry, 7 N. D. 246, 74 N. W. 241; Sheets v. Paine, 10 N. D. 103, 86 N. W. 117, and numerous other decisions of this court. The defendants claim that even though, there may be an irregularity or defect or illegality in assessing, laying, or levying such tax, the courts have the power, under § 2201 of Comp. Laws 1913, to amend and correct the irregularities or defects. As shown in the case of Grand Forks County v. Frederick, supra, this section does not apply to void assessments, by reason of failure to describe the land definitely. We have had occasion already to show that this section does not apply to assessment void on other grounds (Northwestern Improv. Co. v. [10] Oliver County, post, 57; 164 N. W. 315); and the case cited above ■settles the question of its application to assessments void for indefiniteness of description. Defendants claim that the plaintiffs cannot be heard in this case, because these lease interests are assessable, have not paid taxes, and that no taxes are tendered. As we have held in the case of Northwestern Improv. Co. v. Oliver County, supra, no tender need be made in such case as this. This is a statutory action to determine adverse claims. There are no taxes to tender, for the assessment is void, and the nature of this action does not require a tender to be made. If the taxpayer were asking for equitable relief because of some irregularity in the tax proceedings, it would present a different situation. The judgment of the lower court is affirmed. Birdzell, J., being disqualified, did not participate. Honorable A. G. Burr, Judge of the Ninth Judicial District, sat in his place.