Northern Pacific Railway Co. v. Sargent County

Bronson, J. The appellant railway company has appealed from the judgment of the district court of Sargent county, entered December 22, 1916, adjudging a valid lien in favor of Sargent county for $3,189.Y0 and interest upon the railroad right of way of the appellant pursuant to a special assessment made for the construction of a tricounty drain in such county. In January, 1909, the railway company instituted this action to determine adverse claims to its right of way. The defendant, in its answer, claims a lien upon such right of way, by virtue of the special assessment levied for the construction of the drain in question. To this answer the railway company replied, setting up allegations to the effect that the proceedings in the establishment and construction of the drain and the assessment made therefor were illegal, null, and void. Pursuant to the provisions of chap. 23, N. D. Codes 1905, Comp. Laws 1913, chap. 37, concerning drains, and chap. 9Y, Laws 1905, certain proceedings were initiated for the construction of a drainage ditch in the counties of Ransom, Richland, and Sargent. On July 2Y, 1905, a petition for a ditch in Sargent county was filed. Pursuant thereto, on October 1Y, 1905, an order was made by the drain commissioners — 160 — of that county establishing a ditch and changing somewhat the course of said ditch as outlined in the petition. In Ransom county, a petition for a ditch beginning on the east bank of the Sheyenne was filed May 28, 1905,1 and another petition for a ditch in such county was filed December 26, 1905, to start at the northwest corner of section 13. Likewise, pursuant to a petition filed, the drain commissioners of Richland county on July 26, 1905, made an order establishing drain No. 6 therein. Each of these petitions so made was for ditches in each of the respective counties. On February 28, 1906, a meeting at Wyndmere of the drain commissioners of the respective counties was held. On March 15, 1906, these drain commissioners, in a joint meeting agreed to co-operate in the construction of a proposed drain. On March 30, 1906, at a joint meeting of these drain commissioners at Wahpeton it was agreed to co-operate in the construction of a ditch in such counties pursuant to chap. 97, Laws 1905, and that the steps already taken in the respective counties and the work already done would not operate to bar such co-operation, and that certain portion of the proceedings already had could be vacated for the purpose of beginning new proceedings. Between that time and August 27, 1906, various joint meetings were held by these drain commissioners to consider the construction of the proposed drainage ditch in the counties, the classification of the lands for assessment purposes, matters concerning the construction of such ditch involving the securing of a right of way along the ditch and across the appellant railway, and the assessment of benefits to be made against the railway company, as well as against the various townships and municipalities. At one of these meetings the road master of the appellant appeared and promised to put in culverts in the right of way. On August 27, 1906, a joint meeting of the drain commissioners was held at De Lamere. There a resolution was adopted reciting that the joint board has proceeded under § 1836, N. D. Codes 1905, Comp. Laws 1913, § 2479 (chap. 97, Laws 1905), to establish a tricounty drain to be known in Richland county as Drain No. 6, in Sargent county as Drain No. 1, and in Ransom county as Long Drain No. 1; that — 161 — the proceedings theretofore taken were insufficient to confer jurisdiction, and that these original proceedings he abandoned. That, furthermore, notice should be given under § 1841, N. D. Codes 1905, Comp. Laws 1913, § 2485, for the adjustment and settlement of the value of the services rendered, labor done, and money expended under the invalid attempt to establish such drain. Accordingly on August 27, 1906, the joint drain commissioners made and issued a notice of hearing and letting of the contract for the construction of the tricounty drain designated as Long Drain No. 1 in Ransom county, Sargent-Richland Drain No. 1 in Sargent county, and Wyndmere and Sargent Drain No. 6 in Richland county. Therein notice was given of the abandonment of the original proceedings for the individual drains in Sargent and Richland counties and of the assessment dated October 17, 1905, made therefor. Such notice also recited the resolution of the joint board of drain commissioners concerning such abandonment. Such notice further stated, concerning the tricounty drain, the apportionment made to the counties, townships, cities, villages, and other corporations in the percentage of costs and in the percentage of benefits. It also stated that a hearing would be held on September 25, 1905, before the drain commissioners of Sargent county in De Lamere for the purpose of hearing objections or complaints; and, further, that on September 26, 1906, the contract would be let for the construction of the drain by the drain commissioners. This notice was signed by the drain commissioners of the respective counties. On August 27, 1906, the drain commissioners of Sargent county made an order establishing the drain to be known as Tricounty Drain No. 1. This order was based on the petition for the location and establishment of a drain filed with such drain commissioners on July 27, 1905. The order changed somewhat the course of the drain and further provided that the same should be continuous of the Ransom county ditch, and should connect with the Richland county end of the tricounty drain. On August 28, 1906, a committee of the joint drain commissioners apportioned the costs of the ditch among the respective counties in the following proportions: Ransom county — .5032; Sargent county— .2093; Richland county — .2875. Thereafter some fourteen or fifteen — 162 — meetings of these joint drain commissioners were held with reference to the construction of this tricounty drain and the assessments to be made therefor. The last meeting apparently being held on January 13, 1908, when one Cook appeared before the joint board and filed a protest against the assessment made to the appellant railway company. Pursuant to the actions of the joint drain commissioners, the drain commissioners of the defendant county adopted a so-termed percentage for the specific assessment to be made against the lands to be benefited by the drain in Sargent county, and thereupon made a specific assessment in money against the various lands involved including those of the appellant railway company herein. The only assessment involved in this case is that made against the appellant; the other assessments levied have been paid. The appellant contends: 1. That there was no petition for a joint drain in Sargent county, and that the board in its action upon the improvements finally determined upon, acted as volunteer and without any petition. 2. That the Sargent county board in its final action establishing the drain in question in that county, so determined without any petition before it, either for an intracounty or an intercounty drain. 3. That a separate and distinct intracounty drain in Ransom county entered into the costs of the intercounty drain constructed, and that the joint drainage boards deliberately acted so as to make such distinct drain to be considered a part of the joint drain, for purposes of taxation. 4. That there was no order of necessity made for the improvement or any opportunity given for objection to the petition. 5. That there was no notice of review of assessments posted as required nor published or posted as required by law. 6. That no assessment of any property in Sargent county was ever made by anybody or a board. 7. That the joint board did not make an apportionment of the cost of the drain between the several counties. 8. That the drainage boards of the counties and the joint board of such counties acted in bad faith and in fraud of the rights of Sargent county landowners, and especially of the appellant, with the intention of inflicting an undue, unjust, and arbitrary assessment. This tricounty drainage project has been before this court in the — 163 — cases of Hackney v. Elliott, 23 N. D. 373, 137 N. W. 433, and in Northern P. R. Co. v. Richland County, 28 N. D. 172, L.R.A.1915A, 129, 148 N. W. 545, Ann. Cas. 1916E, 574. In the former case the validity of the proceedings had in Richland county was upheld as against the attack of the plaintiff, asserting the invalidity of the same in an action to remove, as a cloud on his title, the lien of certain tax certificates issued upon the special assessment made. In the latter case, an action to determine adverse claims to its right of way brought by the appellant herein, this court held that the appellant’s right of way, if actually benefited, was' subject to assessment for the construction of the drain. In both of these cases the same attorney appears of record for the contesting party as appears herein for the appellant. We do not deem it necessary to enter into an extended discussion concerning the record facts upon the points raised by the appellant herein, in view of certain controlling features that seriously impress this court in its determination of this appeal. We are satisfied upon an examination of the entire record in this case, that the Sargent county drain commissioners had jurisdiction to order the establishment and construction of the drain described in its order dated August 27, 1906 ■ that this order so made was based upon the petition for a drain theretofore filed with such drain commissioners in the month of July, 1905; that such drain commissioners had jurisdiction to make such order pursuant to § 1841, N. D. Codes 1905, Comp. Laws 1913, § 2485, and § 1836, N. D. Codes, 1905, Comp. Laws 1913, § 2479; Hackney v. Elliott, supra. This question concerning the jurisdiction of the drain commissioners involves the consideration of the action taken by such commissioners with relation to the petition filed July 27, 1905. As stated before, the appellant contends that the drain commissioners abandoned the petition so filed, and that their action of August 27, 1906, was not, from the record, an action upon such petition, and, if it were or should be so construed, the drain commissioners had no jurisdiction to make an order for an intercounty drain upon a petition for an intracounty drain, which was to form a part or portion of a joint drain to be constructed by the co-operation of three counties. The record discloses that the drain commissioners did abandon the proceedings that — 164 — they took upon, such petition under their first order, establishing a drain dated October 17, 1905. We do not construe the action taken by the joint drain commissioners, or by the drain commissioners of the defendant county, to mean or to have been intended to mean that they abandoned the right to proceed upon the petition as filed under the law. In fact the subsequent proceedings disclose that they did proceed. upon such petition as filed. The appellant contends, however, concerning the question of jurisdiction, in effect, that the drain commissioners could not establish an intercounty drainage project based upon a petition for an intracounty drain. If the drain in question had been constructed just as it is as an intracounty drain, there ought to be no question that the drain commissioners had both the power and the jurisdiction so to do under law then existing. N. D. Codes 1905, §§ 1821 and 1841, Comp. Laws 1913, §§ 2464, 2485. The law which permits drain commissioners of two or more counties to co-operate in the construction of an intercounty drain does not destroy the unity of action by the drain commissioners of one county when proceeding with relation to that portion of the project situated in such county. The co-operation is joint, but the action of each of the counties concerned is the individual action of such county. Hackney v. Elliott, 23 N. D. 373, 392, 137 N. W. 433. Therefore, as far as the question of jurisdiction and power is concerned, we are satisfied that the drain commissioners of Sargent county did possess jurisdiction. Although there is much merit to many of the contentions raised by the appellant herein concerning the irregularities of the proceedings of the drainage board, we are nevertheless satisfied from the entire record that the appellant herein is not in a position in this action to take advantage of the irregularities in the proceedings concerning which it has entered complaint. This action was commenced by service of process on January 22, 1909. It was not brought to trial until the 19th day of October, 1915, after a lapse of over six years. The action is the equitable action to determine adverse claims. The appellant in such action prays that the court through equity determine the defendant to have no lien or encumbrance upon its property. In this action the only party named as defendant is the defendant, Sargent county. Manifestly this action was instituted for the sole purpose of determining the legality and — 165 — validity of the proceedings had in Sargent county in the construction of the drain in question. Manifestly, the gist of the action was and is to determine the legality of this special tax. The proceedings looking toward the construction of this ditch began in 1905. In 1906 the road master of the appellant railroad appeared before the drainage board and promised to put in culverts in the course of the construction of the drain in question. In .1907 this drain was constructed in Sargent county; for 2 miles it runs parallel to the railway tracks of the appellant, just north of its tracks, and within 200 feet of the center thereof. A spur ditch emptying into this ditch parallels at an equal distance therefrom, the right of way for another mile. During the construction the railway company through its employees opened up its right of way for this drain to pass through and across such right of way. In January, 1908, the railway company appeared before the joint drain board to protest against the assessment made. Since the construction of the ditch some ditches from the railroad right of way into the big ditch, so constructed, have been dug. The récord amply sustains the finding of the trial court that the appellant had actual knowledge of, and has been benefited by, the construction of such drain. In the record the appellant stipulates on its own side, that the tax department of the railway company had no actual notice of the assessment until 1907, after the assessment was levied. This is an admission that it did have notice in 1907. The record discloses no action of any kind taken by the appellant to question this assessment, or the amount of it, excepting the action involved herein. Already all special taxes assessed for the construction of this ditch in Sargent county have been paid excepting those assessed against the railway company. Outside of the voluminous exhibits introduced, the record in this case is not long. No evidence is introduced on behalf of the appellant to show what its assessment should equitably have been. In the record the appellant complains and seeks to elicit evidence that the assessment was so made by men who were not experienced railroad men and who were not acquainted with valuations or benefits that might accrue to railroad property, and yet no attempt is made to show to the trial court what its assessment justly ought to have been through its own experts which it produced at the trial. The appellant, seeking-equity, must be subject to equity. Upon plain principles of estoppel — 166 — and laches, the appellant’s action' herein and its contentions in regard thereto cannot be sustained. The equitable action to determine adverse claims cannot be used for the sole purpose of determining the validity or invalidity of a special assessment," where the record unmistakably shows that the plaintiff, possessing actual knowledge of the construction of the drain, and actually benefited thereby, has been guilty of laches both before and after the institution of the action extending over a period of time exceeding six years, and where, furthermore, the plaintiff has not offered to the court any proof of what its assessment equitably should have been, and has not made any tender to the court to pay for the actual benefits it has received. Under such circumstances, equity will not aid him, where the jurisdiction of the drain commissioners to act is established. Hackney v. Elliott, 23 N. D. 373, 137 N. W. 433; Alstad v. Sim, 15 N. D. 629, 109 N. W. 66; Douglas v. Fargo, 13 N. D. 467, 101 N. W. 919; Erickson v. Cass County, 11 N. D. 494, 92 N. W. 841; Bismarck Water Supply Co. v. Barnes, 30 N. D. 555, L.R.A.1916A, 965, 153 N. W. 454. The appellant also raises the contention in this appeal that the railroad right of way cannot be assessed in any event for the construction of this drain, because such action is violative of the 14th Amendment and the commerce clause of the Federal Constitution. This matter was decided in the case of Northern P. R. Co. v. Richland County, 28 N. D. 172, L.R.A.1915A, 129, 148 N. W. 545; Ann. Cas. 1916E, 574. We reaffirm the holding in that case on this question. The appellant further contends that in any event the judgment should be reversed and the case remanded to the district court, with directions to vacate all proceedings of the drain board commencing with the apportionment of August 27, 1906. Equity will in no manner aid the appellant so to do. The appellant, with actual knowledge of the construction of this drain, having received actual benefit therefrom for years, having permitted over twelve years to elapse since the assessment was made without making any offer to pay any amount whatsoever as its just contribution for benefits received, is in no position to request or seek such equitable consideration. The judgment of the trial court is affirmed, with costs to the respondent. Footnotes [1] Note. — Appellant states that Ransom county petition for drain was filed May 28, 1906. Ex. “E,” the copy before this court, the original not being here, shows the date May 28, 1905.