Wilkinson v. Gaines

Skith, J. delivered tbe opinion of tbe court. A petition in compliance with Code 1906, § 1684 having [692] been filed with tbe chancery clerk of Bolivar county for the formation of a drainage district, the clerk thereupon .proceeded to' give notice “to all persons interested,” as required by section 1687 of the Code, except that he failed to send a copy of such notice by registered mail to the nonresident landowners within five days after the publication of such notice. All subsequent notices required by chapter 39 of the Code were given in accordance therewith. In due course a drainage district was formed, and the assessment of damages and benefits made and approved. Informing this district two watersheds were by the commissioners embraced therein. No objection to the formation of this district or to the assessment was interposed by appellant, who is a nonresident landowner, at any stage of this proceeding. Afterwards appellant filed his bill in the court below, praying that appellees, the drainage commissioners, be enjoined from issuing bonds provided for in section 1709 of the Code. Upon the hearing, the temporary injunction which had been obtained was by decree of the court below dissolved, and appellant’s bill dismissed. Appellant claims that the proceedings by which the drainage district was formed are void for two^ reasons: First, because of the failure of the clerk to notify the nonresident landowners by registered mail within five days of the first publication of the notice required by section 1687. Under the provisions of section 1711 of the Code, the failure of the clerk to give this notice does not invalidate the subsequent proceedings. As appellant had full notice of all subsequent proceedings, and was thereby afforded an opportunity to question the validity thereof, and to object to the assessment of damages and benefits, all the requirements of “due process of law” were met, even if it should be held that notice by publication was insufficient for this purpose, as to which we express no opinion. Erickson v. Cass County, 11 N D. 494, 92 N. W. 841; McMillen v. Anderson, 95 U. S. 37, 24 L. Ed. 335; Davidson v. New Orleans, [693] 96 U. S. 97, 24 L. Ed. 616; Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569. It is next claimed that the action of the drainage commissioners in creating this district is void, for the reason that it embraces two watersheds. This objection cannot now be availed of, for the reason that section 1693 of the Code provides the only manner in which same can be made. The decree of the court below is affirmed. .