Mogaard v. Robinson

BirdzBll, J. This case is a sequel to Mogaard v. City of Garrison, et al. 47 N. D. 468, 182 N. W. 758. It comes here upon an appeal from an order dissolving an order to show cause and dismissing plaintiff’s petition for a writ of certiorari. The petition seeks a review of proceedings had in the city council of said city upon a formal request to disconnect and exclude certain territory. Upon the filing of the petition for a writ of certiorari, an order to show cause was issued, and, upon the return day, counsel stipulated that the record of proceedings of the city council, as set forth in the plaintiff’s petition, was correct, and further stipulated that the questions involved should be determined as fully and finally as if the court had issued its writ. The record facts are as follows : The plaintiff is the owner of the S. E. quarter of the S. E. quarter of section 7 in township 148 north of range 84 west of the Eifth meridian, lying within the corporate limits of the city of Garrison. The city and this 40-acre tract have common boundaries on two sides of the tract for a distance of 80 rods on each side, the tract being situated in one corner and extending for half the width of the city and one-fourth its length. The petition to exclude this territory complies with the statute in every respect. Upon a hearing had before the city council, it appeared that the tract was not platted or laid out in city lots or blocks; that there were no streets or alleys upon the property, no water mains, pavements, sidewalks, or other municipal improvements of any kind, except' a sewer pipe extending across the land about 60 feet from the southern boundary; that the sewer extends about 40 rods beyond the tract in question and beyond the city limits, where it discharges its contents upon other land purchased by the city for that purpose; that the- city has a right (presumably an easement) to go upon the petitioner’s land for the purpose of caring for the sewer and preventing interference with the same; that the sewer is approximately 60 rods from any building on the plaintiff’s iand; that there are no sewer connections on the land in question and no house connections for a distance of about 100 rods above the land; but that there is a connection for a creamery which is apparently some [862] what closer, though the record leaves it indefinite as to its location. It appears that the sewer is so constructed as to admit of connections being made, although it does not appear that blind connections have in fact been inserted. At the conclusion of the hearing, the following resolution was passed: “Whereas, the petition of Neis K. Mogaard and others, praying for the exclusion of the southeast quarter of the southeast quarter (S. E. 34 S. E. of section seven (7) in township number one hundred forty-eight (148), range eighty-four (84) McEean county, North Dakota, from the limits of the city of Garrison, North Dakota, and, “Whereas, the said petitioner, Neis K. Mogaard, and his counsel R. E. Eraser, appeared before this council at its adjourned regular meeting, this 10th day of September, 1921, and before this council presented testimony with reference to the said petition, and, “Whereas from the testimony presented and from the personal knowledge of each and every member of this council, it is determined and decided that there has been established and now maintained, upon the said tract of land, a portion of the main line of the sewer system of said city, so constructed as to admit of sewer connection at any point thereon for the use and benefit of any person or persons so desiring, and, “Whereas, the outlet of the said sewer system of the city of Garrison, does not extend upon or over the tract of land mentioned and described in the petition filed, but does extend over and upon other land belonging to the said city, and, “Whereas, the best interests of the city of Garrison and its future development require that said proposed land be not excluded from the limits thereof: “Therefore it is resolved: “That the said petition be and the same is in all things hereby defied. “On roll call the following named councilmen voted aye: J. A. Reuter, Joe Fitzgerald, Joe Mahowald, W. F. Richards. Nay: “W. M. Robinson, Mayor. “Attest :.E. E. Wacker, City Auditor.” After the decision of this court holding adversely to the petitioner upon his attempt to exclude 35 acres of the tract in question so arbitrar [863] ily shaped as to leave the sewer strip within the city, the Legislature amended the controlling statute by adding a proviso as follows: “And, provided further, that where a sewer outlet extends upon or over said unplatted lands, it shall be the duty of the city council, commission or board of trustees to disconnect and exclude such territory fi'om such city, town or village, provided, that this act shall not in any way repeal or otherwise affect the provisions of § 3697 of the Compiled Laws of 1913.” Chap. 32, Session Laws 1921. Under the statute as it existed prior to the foregoing amendment, unplatted property could not be excluded if municipal sewer, water mains, pavements, sidewalks, or other improvements had been made or -constructed therein but the proviso quoted above directs the exclusion •of unplatted lands, though a “sewer outlet extends upon or over” the name. In other words, where the only municipal improvement upon the land is a sewer outlet and where the other conditions warranting exclusion exist, the lands must be excluded. In the order entered by the trial court dissolving the order to show cause and dismissing the petition, the court held that— The “proceedings were in all respects legal, and that the plaintiff’s tract of land in his said petition described does not come within the provisions of § 3969 of the Compiled Law's of North Dakota, for the year 1913, as amended by chap. 32 of the Laws of 1921, in that there extends upon and over the said tract of land a portion of the main line trunk sewer of the city of Garrison, but the outlet, or mouth thereof, is on lands not embraced in this tract.” We do not understand that any question of procedure is involved upon this appeal, for upon oral argument respondents disclaimed any contention as to the remedy and in their brief it is stated: “It is plain that but one point is involved: Should the city council have excluded this tract upon the showing made. We were willing that this decision should be reviewed by Judge Nuessle, and we now submit to the judgment of the Supreme Court the same question.” (Italics are ours.) It thus appears that the respondents are desirous of terminating the controversy through a construction of the controlling legislation applied to undisputed facts. In this state of the record we must regard the case as turning upon the meaning of the 'words employed in the statute, “where a sewer outlet extends upon or over said unplatted lands,” and [864] upon the facts adduced with reference to the character of that portion of the sewer construction upon the petitioner’s land. Counsel for the appellant contend that this language is descriptive of a sewer of any length which is used only as an outlet fpr the system. On the other hand, counsel for the respondent insist that it is descriptive only of that part of a sewer known as the mouth or end of the sewer, and, possibly, land lying some distance beyond the point where the contents are discharged. We aré of the opinion that the proviso of the statute refers to that portion of the sewer which is so constructed as to be of service for outlet purposes. The statute refers to an outlet as extending, and it makes an exception to the requirement laid down in the preceding paragraph which prevents exclusion where a sewer is constructed in the land sought to be excluded. So an outlet extending must be considered to be some part of the constructed sewer. Does it appear from the record facts that the portion of the sewer upon the petitioner’s land is an outlet for the system, extending to the mouth? It appears that this is an extension of the main sewer and affords the only outlet for the system; that there are.no connections upon the petitioner’s land; so it is not in fact being used by him or by any one upon his land as any part of the system; nor is it capable of being of any practical benefit to the petitioner or any one residing upon his land without the construction of a lateral approximately 60 rods in length. While it is stated in the evidence and in the resolution of the city council that the sew.er is so constructed as to admit of connections at any point thereon for the use and benefit of any person or persons so desiring, such fact does not negative the showing made by the other evidence to the effect that this 80 rods of sewer pipe across the petitioner’s land is in fact nothing more or less than an extension from the sewer s)'-stem proper for outlet purposes. The character of the construction is not disclosed, and the evidence and the finding as to connection 'facilities would be applicable to any kind of a sewer throughout its wliole length; for all seWers are so constructed as to admit of connections being made. The outstanding fact, which clearly appears from the evidence and which is not disputed in the resolution of the city council, is that the sewer pipe on plaintiff’s land is used solely for outlet purposes. It follows that it was the duty of the city council to exclude the territory in question. [865] The order appealed from is reversed, and the case remanded, with directions to enter an appropriate judgment to that effect. Bronson and Robinson, JJ., concur.