text:
    R. J. ULRICH and L. B. Schulte, Plaintiffs and Appellants, v. AMERADA PETROLEUM CORPORATION and McKenzie County, a Municipal Corporation, Defendants and Respondents.
    No. 7426.
    Supreme Court of North Dakota.
    Oct. 2, 1954.
    Rehearing Denied Oct. 29, 1954.

      Q. R. Schulte, Stanley, for plaintiffs and appellants.
    Harold J. Fisher, Williston, John S. Miller, Tulsa, Old., for defendant and respondent, Amerade Petroleum Corporation.
    Strutz, Jansonius & Fleck, Cox, Pearce & Engebretson, Bismarck, amici curiae.
   GRIMSON, Judge.

This is an action to quiet title. Plaintiffs claim to be the owners of Lots One and Two (1-2), East Half (Ey2) of Northwest Quarter (NW^.) and the Northeast Quarter (NE54) of Section Thirty-one (31), Township One Hundred Fifty-one (151), North, Range Ninety-four (94) West of the 5th P.M. The defendant, Amerada Petroleum Corporation, claims to hold an oil and gas lease on said premises. McKenzie County makes no appearance. The purpose of the lawsuit is to determine the validity of said oil and gas lease. The district court found for the defendant and plaintiffs appeal demanding trial de novo.

The facts show that a patent to the land in question was issued by the United States to George Parshall, (also known as Geo. Parshall) on Oct. 28, 1919. He remained the owner thereof until his death in 1951. On March 1, 1940, the county auditor of McKenzie County, after due tax sale proceedings, conveyed the premises by an auditor’s tax deed to McKenzie County on default in payment of taxes for the year 1928 and subsequent years. McKenzie County thereupon entered into possession of said land. On Feb. 1, 1949, McKenzie County executed and delivered an oil and gas lease covering said premises to A. M. Fruh and Thomas W. Leach as lessees which they duly filed and had recorded in the office of the Register of Deeds of McKenzie County on Feb. 7, 1949. No notice of this pending lease was given to the prior owner before its issue. On March 28, 1949, the said lease was assigned to the defendant, Amer-ada Petroleum Corporation, who is still the owner thereof. The assignment was recorded in the office of the Register of Deeds of McKenzie County on Sept. 7, 1949. In 1950 McKenzie County had an offer for the purchase of the premises and on Oct. 2, 1950, the county auditor duly notified George Parshall in accordance with Section 18, Chapter 286 S.L.1941, now Section 57-2818 NDRC 1943, of said offer and the amount necessary for him to make redemption under said chapter. Within thirty days said George Parshall did make such redemption of the premises from McKenzie County and a county deed, was executed and delivered to him, dated Nov. 6, 1950, recorded March 4, 1952, conveying said property to him “in as full and ample manner as the said county is empowered by law to sell the same.” After said George Parshall died in 1951 a decree of heirship was filed and recorded, naming his heirs. All of said heirs quitclaimed to one Guy Fox who thereafter conveyed said premises to the plaintiffs by warranty deed. No ratification of said lease has been made except to 80 mineral acres sold by one of the plaintiffs and ratified by the successors in interest of the prior owner.

There is no question raised as to the validity of the tax sale proceedings. The only question for determination is whether McKenzie County had the authority to enter into an oil and gas lease during the time it held title to the premises subject to the right of the former owner to repurchase.

The counties are political subdivisions of the state. The authority of the county commissioners and of the administrative county officers in the management of the business affairs of the county is prescribed by statute. Title 57 NDRC 1943 provides for the assessment of property and the collection of taxes. Provision is also made for the sale of land for delinquent taxes and for the redemption thereof by the owner. Chapter 57-28 NDRC 1943 establishes the rights of the county when the lands are not redeemed.

Section 57-2808 NDRC 1943 provides that the failure to make redemption passes the “right, title, and interest of the owner, mortgagee, or lienholder in and to said premises, to the county by operation of law”. This court has repeatedly held that a valid tax deed grants a complete title to the land. In Baird v. Stubbins, 58 N.D. 351, 226 N.W. 529, 530, 65 A.L.R. 1009, it is held:

“A valid tax deed clothes the grantee with a new and complete title in the land, under an independent grant from the sovereign authority, which bars and extinguishes all prior titles and encumbrances of private persons whether of record or otherwise.” See also Peterson v. Reishus, 66 N.D. 436, 266 N.W. 417, 105 A.L.R. 724; Nelson v. Murton, 68 N.D. 108, 277 N.W. 390; Buman v. Sturn, 73 N.D. 561, 568, 16 N. W.2d 837; Hefner v. Northwestern Mut. L. Ins. Co., 123 U.S. 747, 8 S.Ct. 337, 31 L.Ed. 309, 311; Coverston v. Grand Forks County, 74 N.D. 552, 23 N.W.2d 746.

When the county receives a tax deed the prior owner or lienholder loses all interest in the property. The county has foreclosed its tax lien and is not holding the land any more as security for the payment of the taxes. The county's lien is merged in the tax deed vesting in the county complete title to the land in lieu of the payment of the delinquent taxes. The cases cited by plaintiffs involved the rights of the owner before the issuance of a tax deed to the county, and do not apply after tax deed issues. Eikevik v. Lee, 73 N.D. 197, 13 N.W.2d 94; Buman v. Sturn, 73 N.D. 561, 16 N.W.2d 837.

With the ownership of the land absolute in the county since March 1, 1940 defendant claims that the county had a right on Feb. 1, 1949 to make an oil and gas lease on said property under Chapter 156 S.L. 1937. Section 1 of that act grants the county commissioners “the right, power and authority to demise, lease and let, both real and personal property, which the County may have acquired through purchase, forfeiture or operation of law, for the purpose of mining, and operating for oil and gas, laying pipe lines, and for establishing and maintaining tanks, power stations and structures thereof to produce, save, sell and take care of said product.” Lands obtained by the county through tax procedure are lands acquired by the county “through forfeiture or operation of law.” Rosenstein v. Williams County, 73 N.D. 363, 15 N.W.2d 378; Buman v. Sturn, 73 N.D. 561, 16 N.W.2d 837; McDonald v. Abraham, 75 N.D. 457, 28 N.W.2d 582.

The plaintiffs contend that this chapter, 156 S.L.1937, is superceded by Chapter 237 S.L. 1939. They claim that the latter chapter repeals by implication the right of the county commissioners to lease for oil and gas.

A comparison of the title of the two acts shows that the 1937 act gives general authority to the county commissioners to lease tax acquired real estate of the county for mining and drilling purposes while Chapter 237 S.L.1939 gives the county commissioners authority to lease real property acquired by tax deed and not sold or leased. The former is a general act for the leasing of county property for the purpose of mining and operating for oil and gas. The latter is clearly a general act for leasing for agricultural and grazing purposes the tax acquired lands of the county that have not already been sold or leased for oil and gas and provides the terms thereof. There is no conflict between the two acts. Both can be reconciled and both made effective. Coulter v. Ramberg, N.D., 55 N.W.2d 516.

Moreover, Chapter 163 S.L.1941, now Section 38-0905 to Section 38-0910 NDRC 1943, authorizes the county to approve and adopt oil and gas leases executed by the owner of lands which have been later forfeited to the county in tax procéedings. That is really complementary 'to the general authority of the county to grant oil and gas leases as provided by Chapter 156 S.L. 1937, now Section 38-0911 NDRC 1943, and confirms the intention of the legislature to grant full authority to the counties to lease tax acquired lands for oil and gas.

It is further claimed for the plaintiffs that when the prior owner, their predecessor in title, repurchased his land from McKenzie County on Nov. 6, 1950, under Sections 57-2818, 57-2819 NDRC 1943, he regained the complete title to all the real estate he forfeited; that the oil and gas lease is a sale of an interest in real property which the county ’had no authority to make except upon the notice provided in that chapter which was not given; that, therefore, the lease is void.

The defendant contends, however, that the repurchase provisions, Sections 57-2818 and 57-2819 NDRC 1943, apply only to transfers by deed and that no notice to prior owner is required unless the county has the opportunity to sell the tax forfeited land by deed. It is pointed out that the statutes provide for all transfers, of forfeited real .estate by the county by way of a deed “conveying all right, title and interest of the county” in such land. Sections 14 and 15, Chapter 286, S.L.1941. This provision also applies to transfer by deed to the prior owner if he repurchases and to the new purchaser if the prior owner does not repurchase within the thirty days. Sections 18 and 19, Chapter 286 S.L.1941. Defendant argues that it must be inferred therefrom that the- legislature intended these sections to apply only in case of a sale by a deed and that the county has a right to transfer any. interest in such land by means of a lease -during the time it held title since all it had to-deliver to the owner on repurchase was its “right, title and interest” in the land at that time. Therefore, -he contends that McKenzie County had the right to grant the oil and gas lease in question during the time it held title to the land and that the prior owner was not entitled to notice thereof.

The law, Chapter 286 S.L.1941, now Section 57-2819 NDRC 1943, gives the .prior owner the right to repurchase “(ill real estate” which he has forfeited to the county. The word “all” when referring to amount, quantity or extent means “the whole of.” Webster’s International Dictionary, Second Edition. “All. Means the whole of — used with a singular noun or pronoun, and referring to amount, quantity, extent, duration, quality, or degree.” Black’s Law Dictionary. An analogous use of the word “all” is found in Johnson v. Glaspey & Rennie, 16 N.D. 335, 113 N.W. 602, 603, as follow's:

“We cannot conceive of any costs to which the prevailing party in the district court would be entitled on appeal, or on the dismissal of an appeal from the justice court which would not be included in the term ‘all costs,’ *

“ ‘All’ means everything to which it is applied.” Sommerville’s Estate, 64 S.D. 238, 266 N.W. 158, 160.

In Beckstead v. Griffith, 11 Idaho 738, 83 P. 764, 767, it is said: “The word ‘all’ * * * has but one common and accepted meaning; it means the entire quantity, the whole- amount * * In Haverly v. Elliott, 39 Neb. 201, 57 N.W. 1010, 1011, the court says: “The word ‘all’, does not mean some, nor a part, but it means the whole, * * This definition is again approved in Joslin v. Williams, 76 Neb. 594, 107 N.W. 837. As there, said that is a common-sense definition.

We are agreed that that definition applies'in the use of the word “all” in connection with the repurchase of his land by the former owner, Section , 57-2819 NDRC 1943. It means the whoie title to the land that had been forfeited may be repurchased by the prior owner. It is true that upon repurchase the county transfers only its right, title and interest in the real estate to the prior owner by deed but that must include all the right, title and interest that the county obtained by the tax sale proceedings. It makes no difference whether the county’s opportunity to sell is by lease. If it involves a sale of an interest in real estate the provisions of Section 57-2818 NDRC 1943 apply. ( The provision in Section 57-2818 NDRC 1943, that the tentative purchaser shall be entitled to a deed if the former owner does not repurchase must be construed as applying to a lease, where the offer to purchase is only an interest in real estate by way of a lease. “ ‘Every statute must be construed with reférence to the policy intended to be accomplished’ ”. State ex rel. Skeffington v. Seigfried, 40 N.D. 57, 168 N.W. 62, 64. The policy of the legislature is clearly that the former owner should have full opportunity to repurchase his whole interest in the -land forfeited. The use of the phrase “all right, title and interest” in the deed is rather to protect the county against irnper-fections in the tax sale proceedings than to give the county any authority to dispose of any interest in that land while it holds the title.

By the lease in question McKenzie County did “grant, demise, lease and let” unto the lessee the premises in question for the purpose of exploring, mining and operating for oil and gas at 25 cts. per acre, payable annually, and ⅜⅛ of the gross proceeds each year for any gas and oil used off the premises. Under this lease, if gas and oil were found in the operation for oil and gas, a portion thereof was sold to the lessee. That amounts to a conveyance of an interest in real property. We held in Petroleum Exchange Inc., v. Poynter, N.D., 64 N.W.2d 718, 726, that “oil, gas and mineral leases are transfers of interests in real property”. See also Piney Oil & Gas Co. v. Allen, 235 Ky. 767, 32 S.W.2d 325; Standard Oil Co. of Louisiana v. Oil Well Salvage Co., 170 Ark. 729, 281 S.W. 360; McCracken v. Hummel, 43 Cal.App.2d 302, 110 P.2d 700; Callahan v. Martin, 3 Cal.2d 110, 43 P.2d 788, 101 A.L.R. 871; Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711.

Both Chapter 156 S.L.1937, now Section 38-0911 NDRC 1943, and Chapter 286 S.L.1941, now Sections 57-2818 and 57-2819 NDRC 1943, deal with the transfer of an interest in real estate by the county. The former authorizes the county commissioners to lease the forfeited lands for gas and oil. The latter gives the prior •owner a chance to repurchase all his forfeited lands while the title thereof remains In the county. The question for us to determine is whether these statutes conflict or whether they can be reconciled. If there is a conflict the last or special statute would control. Village of Dazey v. Barnes County, 70 N.D. 752, 298 N.W. 13; Kershaw v. Burleigh County, 77 N.D. 932, 47 N.W.2d 132. If an inconsistency in two statutes can be avoided and their terms harmonized both will be upheld. State v. Young, 68 N.D. 300, 279 N.W. 251; Coulter v. Ramberg, supra.

“In the construction of statutes a determination must be made as to what was the intention of the legislature in the enactment therof. Such intent is the controlling factor and must be given effect to the fullest degree. As aides in finding that intent, the reason for the enactment of the law, evils at which the legislation is aimed, the historical background and other statutes on related subjects may be considered.” Coulter v. Ramberg, N.D., 55 N.W.2d 516, 519, 521, and cases cited.

During the hard times of 1930 to 1940 many taxpayers were unable to pay their taxes and were losing their lands by tax deed proceedings. To encourage a taxpayer, who had lost his land because of his inability to pay his taxes, the legislature, in 1939, passed Chapter 238 S.L.1939, p. 402. The first section thereof provides:

“Any real estate heretofore or hereafter forfeited to the county under tax deed proceedings, shall be subject to redemption by the owner whose title was forfeited, or his successor in interest, at any time while the tax title thereto remains in such county and pri- or to re-sale, upon the payment of the amount which would have been required to effect a redemption had no tax deed been issued thereon, plus interest at the rate of four (4%) per cent per annum, from the date of the execution of such tax deed; provided that such right of redemption shall not interfere with the existing right of the county to re-sell real estate acquired by tax deed at any time as otherwise provided by law. Where a redemption is made under this act, the county auditor shall execute a quitclaim deed in behalf of the county for such real estate to the person making such redemption."

The second section gave any person making such redemption the right to take advantage of the benefits of any tax reduction or adjustment provided by that session of the legislature.

Section 3 gives the county commissioners the authority to enter into a contract for the re-sale to the former owner or his successor in interest of any real estate which, had been forfeited to the county on tax deed proceedings under the terms therein prescribed.

Section 4 provides:

“This act is in the nature of supplemental emergency legislation designed to encourage and facilitate the redemption or repurchase of real estate forfeited to .the counties on tax deed by former owners and shall be liberally construed to carry out that purpose.”

In 1941 this Chapter 238 S.L.1939 and Chapter 235 S.L.1939 which regulated tax deed proceedings, were repealed and a complete new act on tax deed proceedings was enacted in Chapter 286 S.L.1941, now Chapter 57-28 NDRC 1943. In that chapter were included the provisions of Chapter 235 S.L.1939 providing for the redemption and repurchase by the former owner of “all real estate”, forfeited to the county under tax deed proceedings. Some new provisions were added. Section 18 of said Chapter 286 provided “that if such property is sold at private sale to any other person than the original owner or his successor.in interest, such sale shall be held in abeyance for a period of thirty (30) days from the date of notice to the owner or his successor in interest given by registered mail by the county auditor during which time the original owner or his successor in interest may” redeem or repurchase said property according to the provisions of said Sections 18 and 19 of said chapter.

It will be noticed that in the original act, Chapter 238 S.L.1939, supra, there was a special provision that the prior owners “right of redemption shall not interfere with the existing right of the county to .resell real estate acquired by tax deed at any time as otherwise provided by law.” In Chapter 286 S.L.1941 that provision was omitted. In that same chapter also the provision that a thirty day notice of a private sale had to be given to the prior own-, er during which “such sale shall be held in abeyance” was first enacted. These two changes in the law indicate that it was the deliberate intention of the legislature to eliminate the right of the county to sell the real estate during the time the owner was given the right to repurchase. That was in accordance with and in furtherance of the policy of the legislature to give the former owner a chance to repurchase his tax forfeited real estate. State ex rel. Skeffington v. Seigfried, supra.

The policy of the legislatures during the depression to give the property owner all possible leeway and opportunity to save his land from tax forfeiture is clearly indicated, not only in this act, but in all tax proceedings.

“It is a matter of common knowledge that a severe depression existed in North Dakota during the period from 1930 to 1940. The conditions as to crops and prices prevailing made the cash resources of people very small. Very many people were unable to pay their taxes. The local and state governments were in difficulties for lack of tax receipts sufficient to carry on the processes of government, A real emergency faced the people and the government. This gave rise to the attempts of the legislatures meeting during that time to ameliorate those tax problems, as far as possible. The five sessions: of the legislature meeting in that decade passed 91 acts on taxes.” Coulter v. Ramberg, N.D., 55 N.W.2d 516, 519.

During the 1931-1941 sessions of the legislature relief was provided to the taxpayers by reduction of penalty and interest.on. payment of taxes, by an extension of time for payment of taxes and redemption of land from tax sales, and by moratoria on tax deed proceedings. Clearly the intent was to enable the taxpayer to retain his. property. See Chapter 238 S.L.1933, Chapter 277 S.L.1935, Chapter 280 S.L.1935, Chapter 240 S.L.1937, Chapter 227 S.L. 1939, Chapter 235 S.L.1939, and especially Chapter 238 S.L.1939, heretofore quoted..

■ Considering these acts of the legislature as well as the' origin and development of' Chapter 238 S.L.1939 as heretofore shown,. and the policy of the legislature it seems clear that in passing Sections 18 and 19, Chapter 286 S.L.1941, the legislature intended to give the prior owner of tax forfeited lands the opportunity to repurchase the entire real estate he had forfeited to the county. A liberal construction of Chapter 286 S.L.1941, as required by said chapter, necessitates a holding that the prior owner must be given thirty days in which to redeem or repurchase before a private sale of any interest in the real estate can he closed by the county. This is in accordance with our decision in Bloomdale v. Rutland, 74 N.D. 651, 24 N.W.2d 38, 40, where we held:

“The legislature has provided three ways by which a county may dispose of tax deed property. (1) It may sell the property to the highest bidder as provided by Sec. 14, of Ch. 286. (2) It may sell the property at private sale under Secs. 17 and 18 of Ch. 286, in which event the former owner or his successor in interest must be given thirty days’ notice. (3) It may proceed in the manner set forth in Ch. 118, Sess.Laws ND 1935, and set aside and transfer the property for park and recreational purposes and may convey the same to a city or village for park or recreational purposes or both. (Emphasis ours.)

Under this holding a private sale of a gas and oil interest in land by the county commissioners after the county obtains tax deed would come under the second provision for disposing of tax acquired property.

The original provision in Chapter 238 S.L.1939 gave the right of repurchase to “the owner whose title was forfeited, or his successor in interest, * * ” That provision was repeated in Section 18, Chapter 286 S.L.1941. That provision was amended by Chapter 121 S.L.1943, and the right was limited “to the former owner his executor or administrator or any member of his immediate family”. This change emphasizes the continued intention of the legislature to grant this right of repurchase for the benefit of the former owner and his immediate family only. It is a right restricted to the special group named in the statute. It is a privilege which cannot be assigned to anyone outside of the group. It is a limited right which can be exercised by only those designated. It inures to no one else.

This court has repeatedly held that these provisions for the redemption or repurchase of property by the former owner are merely an additional privilege extended to the former owner. He' is not thereby granted any vested interest in the property.

In Buman v. Sturn, 73 N.D. 561, 571, 16 N.W.2d 837, 842, Chief Justice Morris, speaking for this court said:

“That statute (Chapter 238 S.L. 1939) has no connection with or effect upon the vesting of title in the county. It confers an additional right (erroneously designated as a right of redemption) upon the former owner, making him a preferred purchaser without profit to the county. It is a special statute giving him a second chance as a special act of grace.” See also Horab v. Williams County, 73 N.D. 754, 759, 19 N.W.2d 649; Stutsman v. Smith, 73 N.D. 664, 675, 18 N.W.2d 679; Coverston v. Grand Forks County, 74 N.D. 552, 23 N.W.2d 746; Blackford v. Judith Basin County, 109 Mont. 578, 98 P.2d 872, 126 A.L.R. 639; Yates v. Hawkins, 46 N.M. 249, 126 P.2d 476.

The title of the county to any tax forfeited land is not affected by this privilege given to the prior owner and his family. The county is only required to give a notice to them in case of the proposed, private sale of any interest therein. A lease given without that notice is subject to the right of the prior owner to repurchase. Such a lease is voidable by the prior owner or his family on repurchase according to the provisions of Section 57-2818 NDRC 1943.

That does not involve any implied repeal of Section 38-0911 NDRC 1943 which authorizes the county to make an oil and gas lease. It merely provides that before the county can give an effective lease on tax forfeited lands the prior owner has to have notice so that he may repurchase if he desires. If he does not, the lease becomes effective. Thus any differences , between Section 38-0911 and Sections 57-2818 and 57-2819 NDRC 1943 are reconciled and both acts harmonized. State v. Moses, 72 N.D. 142, 5 N.W.2d 303.

This construction of the laws also reconciles the policy of the legislature during the depression to encourage capital investments, in North Dakota, as pointed out by the amici curiae with its policy to encourage tax debtors to pay'their taxes as to redeem of repurchase their tax forfeited real estate.

In the instant case George Parshall, the prior owner, did repurchase his tax forfeited land under the provisions of Sections 57-2818 and 57-2819 NDRC 1943. The county was thereupon empowered and required to convey to him “all real estate” that the county had obtained from him through the tax deed proceedings. Par-shall, the prior owner and plaintiff’s predecessor in title, thereby received the whole title which he had lost to the county. Such title must be quieted as against defendant’s oil and gas lease upon the premises which by Parshall’s repurchase became void.

The judgment of the district court is modified and the case remanded for entry of judgment in accordance herewith.

MORRIS, C. J., and BURKE, SATHRE and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: SATHRE, Judge.

license: Public Domain

text:
    Clarence O. STEEN and Josie Steen, as Joint Tenants, Plaintiffs and Respondents, v. Deane E. FAY, Defendant and Appellant.
    No. 7459.
    Supreme Court of North Dakota.
    Oct. 30, 1954.

      Robert B. Baird, Dickinson, for defendant and appellant.
    B. L. Wilson, Bowbells, for plaintiffs and respondents.
   SATHRE, Judge.

This is an action brought by the plaintiffs against the defendant to quiet title to the SE}4 of Section 18, Township 162, Range 93 in the County of Burke, State of North Dakota; The complaint is in the statutory form ’for determining adverse claims. The defendant answered alleging that he is the owner of 50% of all oil, natural gas or minerals found on or underlying said land. The undisputed facts are substantially as follows’:

Some time prior to October, 1946 Burke County had acquired title to the premises involved in this action through tax deed proceedings. On October 1, 1946 Burke County sold the said premises to the defendant -Deane E. Fay and issu.ed to him the regular form of county deed covering the said premises but which deed contained the following provisions:

“The party of the first part reserves ownership of 50% of all oil, natural gas or minerals' which may be found or underlying said land.”

On April' 30, 1948 the defendant Deane E. Fay sold the said premises to the plaintiff Clarence O. Steen arid executed and delivered to him a quitclaim deed in the usual form. However said quitclaim deed contained no reservation of minerals., On the 7th day of May 1952 Burke County executed a second quitclaim deed to the defendant Deane E. Fay by which it granted, bargained, demised and released and quitclaimed to said defendant all of the premises previously conveyed to the defendant and in addition this deed recited that:

“It is the intent of this deed to convey the 50% of oil, gas and other minerals reserved in that deed dated October 1, 1946 which is recorded in Book 54 of Deeds on page 252.”

Thereafter the plaintiffs through their attorney attempted to procure a quit-claim deed from the defendant quit-claiming to the plaintiffs 50% of the minerals in said described premises in order to remove any cloud on the title by reason of the reservation made by Burke County of 50% of the minerals. The defendant refused to give a quitclaim deed to the plaintiffs and as a result this action was brought. The action was tried to the court without a jury at Minot, Ward County, North Dakota before the Hon. A. J. Grorina, District Judge. Judgment was rendered in favor of the plaintiffs to the effect that the reservation of 50% of the minerals by Burke County in its deed to defendant Deane E. Fay was null and void and of no effect and that the deed executed by said Burke County on October 1, 1946 to the defendant conveyed all of the right, title and interest of the county in and to the said premises to the defendant Deane E. Fay. The defendant appealed from the judgment.

The only issue in the case is as to the ownership of 50% of the oil, natural gas and minerals on or underlying the land involved.

The Legislative .Session of 1941 enacted Chapter 136, .11-2704, NDRC 1943, and Chapter 286, 27-28, NDRC 1943. . .

Section 11-2704 requires the county upon the sale of lands, whether such lands were acquired by tax deed proceedings or not, or by any other method, to reserve to the county 50% of all, oil, natural gas, or minerals which may be found on or underlying the land. The reservation made by Burke County in its deed of October 1, 1946 to the defendant Fay was made under said statute. Chapter 286, passed at the same session as Chapter 136, deals exclusively with tax deed proceedings by the counties and prescribes the form of deed to be used by the county in conveying lands acquired through non-payment of taxes. It provides that such deed given to the purchaser by the county is one conveying all right, title and interest of the county to the purchaser. It makes no provision for reservation of gas, oil and minerals. Chapters 136 and 286 were contemporary enactments passed at the 1941 session of the legislature but Chapter 286 was approved by the governor one day after the approval of Chapter 136.

This court has held in several recent decisions that Chapter 136 is a general statute and deals with all sales of lands by counties whether such lands were acquired through tax deed proceedings or by any other method. Chapter 286 is a special statute dealing comprehensively with lands acquired by counties through tax deed proceedings, and being later in point of time of enactment supercedes Chapter 136 with respect to lands acquired through tax deed proceedings. Adams County v. Smith, 74 N.D. 621, 23 N.W.2d 873; Kershaw v. Burleigh County, 77 N.D. 932, 47 N.W.2d 132; Kopplin v. Burleigh County, 77 N.D. 942, 47 N.W.2d 137; State v. California Co., N.D., 56 N.W.2d 762.

In Adams County v. Smith [74 N.D. 621, 23 N.W.2d 878] we said:

“Where, as in this case, a statute dealing comprehensively and exclusively with a special subject is in irreconcilable conflict with a prior and more general enactment, the later and more specific statute prevails. * * * The application of recognized rules of statutory construction with respect to both the chronology of the enactment of the statutes and a comparison of their subject matter and scope impels us to hold that Ch. 286 prevails with respect to the conveyance by a county of lands acquired by it through tax deed proceedings.”

and in the case of Kopplin v. Burleigh County, supra [77 N.D. 942, 47 N.W.2d 140], we said:

“It is the authority under which the officers act and not the recitals in the deed that determine its scope and validity. * * * It follows that the substance of the deed may not be varied by the officers executing it. The powers of public officers are to be measured by the terms and necessary implications of the grant conferring the power on them. In this case the mandate of the statute is that in conveying lands forfeited to the County for nonpayment of taxes the officers do so by an instrument conveying to the purchaser ‘all right, title, and interest’ the County has in the lands conveyed. An instrument conveying any lesser estate is not a compliance with the statute.”

It follows that Chapter 136 did not apply to the sale by Burke County to defendant Fay, and that the deed of October 1, 1946 conveyed to him all of the county’s right, title and interest in the real property involved including natural gas, oil and minerals, and that the attempted reservation was a nullity. The subsequent deed of May 7, 1952 by Burke County to the defendant was therefore superfluous as the county had previously conveyed to him all of its right, title and interest in the land involved. We conclude therefore that upon the undisputed facts, the law applicable thereto and the decisions cited herein, the judgment of the district court was correct and it is affirmed.

MORRIS, C. J., and BURKE, JOHNSON and GRIMSON, JJ., concur.


author: MORRIS, Chief Justice.

text:
    STATE of North Dakota, Plaintiff and Respondent, v. James KUNTZ, Defendant and Appellant.
    No. Cr. 257.
    Supreme Court of North Dakota.
    Oct. 29, 1954.
    Robert Vogel, State’s Atty., and Paul W. Buehler, Asst. State’s Atty., Garrison, for plaintiff and respondent.
    J. K. Murray, Bismarck, for defendant and appellant.
   MORRIS, Chief Justice.

This is a criminal action in which the state charged that the defendant, James Kuntz, on or about the twentieth day of March 1953, in McLean County, North Dakota, “did commit the crime of Unlawful Killing of Livestock, committed in the manner following, to-wit: That at the same time and place the said defendant did then arid there wilfully and unlawfully and wrongfully and intentionally kill or cause to be killed one Heifer Calf, the property of Ambrose Hosie.” The defendant pleaded not guilty. The jury rendered a verdict of guilty, upon which the court, on December 3, 1953, rendered judgment sentencing the defendant to be imprisoned in the state penitentiary not less than two nor more than five years.

The defendant moved for arrest of judgment and for a new; trial. Both motions were denied. The defendant has appealed from both the judgment and from the order denying his motion for a new trial. Under both appeals he challenges the jurisdiction of the convicting court upon the ground that the crime was committed upon the Fort Berthold Indian Reservation against the property of an Indian who was then residing and operating a ranch on the reservation.

There is no dispute as’ to the time and place of the commission of the offense by the defendant, who is a white man. There is a dispute as to whether Ambrose Hosie is an Indian and as to whether he owned the animal that was killed. Before considering further these differences of fact between the state and the defendant, we will turn to the law applicable to the jurisdiction of state courts in such cases.

In Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 780, 90 L.Ed. 962, we find this statement:

“While the laws and courts of the State of Arizona may have jurisdiction over offenses committed on this reservation between persons who are not Indians, the laws and courts of the United States, rather than those of Arizona, have jurisdiction over offenses committed there, as in this case, by one who is not an Indian against one who is an Indian.”

The statement of the law above' quoted from Williams v. United States is applicable to the jurisdiction of state courts over offenses committed on the Fort Berthold Reservation in North Dakota by persons belonging to the classes mentioned.

' The courts of the State of North Dakota do not have jurisdiction over crimes committed on the Fort Berthold Reservation by one who is' not an Indian against one who is an Indian. Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820, Ann.Cas.1913E, 710; State v. Youpee, 103 Mont. 86, 61 P.2d 832; 42 C.J.S., Indians, § 79b.

“The exclusive jurisdiction of the Federal courts over Indian reservations within state limits extends not only to crimes committed by an Indian, but also to crimes committed on the reservation against an Indian by a white person.” 27 Am.Jur., Indians, Section 51.

On the other hand, our state courts have jurisdiction over offenses committed on Indian reservations by persons who are not Indians against other persons who are not Indians. Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419; State v. Campbell, 53 Minn. 354, 55 N.W. 553, 21 L.R.A. 169; 27 Am.Jur., Indians, Section 51; 42 C.J.S., Indians, § 79c.

The state contends that Ambrose Hosie, the person against whom the crime in this case is alleged to have been committed, is not an Indian and that there being no contrary reservation of power by treaty or by federal statute with regard to the Fort Berthold Reservation, the courts of’ the State of North Dakota have jurisdiction to prosecute the defendant for the crime charged. This requires us to determine upon the record in this case whether Am-brose Hosie is an Indian.

Ambrose Hosie, the complaining witness, testifying on the part of the state, said that he lives on the reservation in McLean County and has lived in this country all of his life of about thirty-three years. He owns about forty head of Hereford cattle. On about the twentieth of March 1953, a yearling heifer was missing. Later he saw the head and hide of the animal where it had been butchered about two and a half miles northwest of his farm. He recognized the hide by his brand. On cross-examination this witness testified that he permitted his cattle to run loose on the reservation. When asked if he was of Indian descent, he said: “Yes, I am an Indian. Q. What part Indian — fullblood or what? A. Half.” Another witness for the state testified that Hosie was part Indian.

Another witness, Ben Kills Thunder, who was chief of police at Elbowoods and also a special deputy officer on the Fort Berthold Reservation, testified that the hide was turned over to him; that it was branded 2 over 3 and that he knew that it was Ambrose Hosie’s brand. The hide also was. branded “ID” on the right shoulder. The witness stated: “ 'ID’ stands for Indian; the government Tribal Laws.” After further examination of Hosie during which the question was raised as to who owned the animal, he testified that before he could sell it he had' to get permission to sell it and that the animal belonged to the Indian tribe and himself and that he is a member of the tribe. He also stated that if he got permission of the government to sell the animal, he would get the money. It is obvious that at that point in the case the state was trying to prove that Hosie was the owner while the defense was trying to establish that the government was the owner of the legal title and that Hosie was the custodian and beneficial owner. _ ,

Later the parties reversed their positions somewhat. The state now contends the United States Governnient is the owner of the animal that was killed and that the •crime was committed against the United States Government rather than against Hosie and seeks to apply the rule that state courts have jurisdiction over larcenies of property of the United States committed within the state on the ground that the act is an offense against the state as well as against the federal government. See State v. Frach, 162 Or. 602, 94 P.2d 143. The defense contended on the hearing of the motion for arrest of judgment and now contends that the heifer that was killed was the property of Ambrose Hosie, an Indian, constitutes a crime against an Indian committed on an Indian reservation, and the state courts therefore have no jurisdiction.

In State v. Phelps, 93 Mont. 277, 19 P.2d 319, 321, it is said:

“Presumptively, a person apparently of mixed blood, residing upon a reservation and claiming to be an Indian, is in fact an Indian.”

In this case it is obvious that Am-brose Hosie was half of Indian blood; that he lived on the reservation as an Indian' and was treated as an Indian by the Indian Department. He was permitted to possess and raise cattle as a part of the tribal herd under the supervision of the Indian Department. The cattle were branded with Hosie’s brand as well as that of the Indian Department. He was clearly the beneficial owner of the cattle and the ■ recipient of the money from those that might be sold, regardless of where the legal title rested. The state prosecuted this case upon an information charging that the animal that was killed was the property of Ambrose Hosie and tried the case upon that theory. We think the state was successful in establishing that the animal that was killed was the property of Ambrose Hosie. The difficulty for the state arises from the fact that the record also shows that Ambrose Hosie is an Indian. Therefore the crime was committed against an Indian by killing his livestock. It is a crime committed by a white man against an Indian on an Indian reservation and under the rules stated in Williams v. United States, above, is an offense over which the courts of the United States rather than those of the State of North Dakota have jurisdiction. The District Court of McLean County being without jurisdiction to render the judgment appealed from, that judgment is reversed.

BURKE, SATHRE, JOHNSON, and GRIMSON, JJ., concur.


author: BURKE, Judge.

text:
    C. E. HENNENFENT, Plaintiff and Appellant, v. Emanuel FLATH, Defendant and Respondent.
    No. 7405.
    Supreme Court of North Dakota.
    Oct. 30, 1954.

      Ella Van Berkom, Minot, for appellant.
    Robt. Vogel, Garrison, for respondent.
   BURKE, Judge.

This action arose out of a collision between a motor vehicle driven 'by the plaintiff and an animal owned 'by the defendant. The collision occurred upon a public highway. In his complaint the plaintiff alleged that defendant, negligently, and in violation of the laws of the State of North Dakota, permitted cattle owned by him to run at large and that such negligence proximately caused injury and damage to the plaintiff’s automobile in the sum of $549.92. He asked for judgment in that amount. Defendant answered denying any negligence on his part, alleging contributory negligence on the part of the plaintiff and counterclaiming for the value of the animal struck and killed by plaintiff’s car. The issues in the case were tried to a jury and a verdict was returned for a dismissal of the action. Thereafter plaintiff moved for a new trial. This motion was denied and plaintiff has appealed from the order denying the motion.

There are five specifications of error. We shall first consider the specification that the verdict and judgment are contrary to the evidence. Upon this specification plaintiff’s contention is that both defendant’s negligence and lack of contributory negligence on the part of the plaintiff were established by the evidence as a matter of law.

The collision occurred upon Highway 83 at about 8:30 P.M. on the 8th of April at a point about a mile to a mile and a half south of Coleharbor. In this vicinity the course of the highway is parallel to the right of way of the Soo Railway and runs generally from northwest to southeast. The right of way is southwest of the highway. Defendant’s land abuts the railroad right of way on the southwest and is separated from it 'by a right of way fence. In order to reach his land from Highway 83, it was necessary for defendant to cross the railroad right of way. In the winter preceding the collision defendant’s customary way of entry across the tracks had been blocked by snow and he had secured permission from the railway company to use an emergency crossing at a point where there was a wooden gate in the right of way fence. Defendant removed this wooden gate. He said he replaced it with a wire gate which he kept closed. On the other hand Melvin Thorson, the section foreman in charge of right of way maintenance, stated that he never saw the wire gate and that there was no wire gate at the time he replaced the wooden gate after defendant’s regular entry across the tracks was reopened.

Immediately prior to the collision plaintiff was traveling upon the highway in a southeasterly direction at a speed, according to his testimony, of 45 or ¡50 miles per hour. It was dark and the bright lights of the car were lighted. His testimony is that a car approached from the opposite direction with glaring headlights which made it impossible for him to see beyond it, that he dimmed his headlights and diminished his speed as the two cars neared each other, that just as the other car passed 'he saw two animals coming across the road from 'his left, “from behind the other car”. He missed the first animal but struck the second one which he said was only 30 to 40 feet away from him when he first saw it. He said, “I didn’t have an opportunity to avoid hitting it and I was afraid I would turn the car over so I killed the car down and' let it slide right along. There was a fellow behind me and I was afraid he might hit me.” The skid marks left 'by plaintiff’s car on the highway were 116 feet long and plaintiff estimated that his car traveled about 80 feet after striking the animal. None of the persons riding in plaintiff’s car were injured. There is no question but that the animals belonged to the defendant.

It was plaintiff’s theory that the cattle left defendant’s pasture by way of the gate in the right of way fence. Defendant, however, testified that the tracks of the animals in the 'snow showed where they went through the fence. This fence was woven wire at the bottom, topped by three strands of barbed wire. Defendant said that at the place1 where the animals’ tracks were, the woven wire had sagged and the barbed wire was loose. It was his theory that the cattle had “crawled” through the fence in the space between the woven wire and the first strand of barbed wire. He said that 12 animals had got out of the pasture, while plaintiff said there were 15 to 20 out on the highway. Defendant stated that he had not inspected the fence prior to this occasion. He said, “It was early in the spring yet and I never went around to fix the fences.”

Upon this record are negligence on the part of the defendant and absence of contributory negligence on the part of the plaintiff established as a matter of law? We think not. Questions of negligence and contributory negligence are questions of fact for the jury unless the evidence is such that reasonable men can draw but one conclusion therefrom. Armstrong v. McDonald, 72 N.D. 28, 4 N.W.2d 191; Fagerlund v. Jensen, 74 N.D. 766, 24 N.W.2d 816; Pachl v. Officer, N.D., 54 N.W.2d 883.

Plaintiff asserts that defendant’s negligence arises out of a breach of a statutory duty. Section 36-1101, NDRC 1943, provides: “No cattle, horses, mules, swine, goats, or sheep shall be permitted to run at large” except under certain conditions which do not exist in this case. Section 36-1107, NDRC 1943, provides: “The owner or possessor of * * * cattle which shall inflict any damage to the crops or other property of another * * * shall be liable to the person sustaining the injuries or to the owner of the lands for all damages suffered by him * * These sections are part of the, “Herd Law”' as .it appears in the -1895 Code. From the time at which this law was enacted, and. the provisions of the act generally, we are satisfied that its purpose was to protect the state’s chief industries, cattle raising and agriculture. It is a'general rule that a party seeking to recover damages under such an act must be within the class the statute was enacted to protect. Hansen v. Kemmish, 201 Iowa 1008, 208 N.W. 277, 45 A.L.R. 498; Fox v. Koehnig, 190 Wis. 528, 209 N.W. 708, 49 A.L.R. 903; Sidle v. Baker, 52 Ohio App. 89, 3 N.E.2d 537; Champlin Refining Co. v. Cooper, 184 Okl. 153, 86 P.2d 61. A traveler upon a highway therefore has no cause of action by virtue of the “Herd Law” but his rights and the defendant’s duties are to be measured 'by the rule of due care. Hansen v. Kemmish, supra; Fox v. Koehnig, supra; Texeira v. Sundquist, 288 Mass. 93, 192 N.E. 611.

The question then is: Did defendant exercise ordinary care to prevent his cattle from running at large? There is proof that there was a weak spot in an otherwise substantial fence through which the cattle emerged from the pasture. There is proof that defendant turned his cattle into the pasture without - first inspecting the fence. There is nothing in the evidence to show that defendant at that time knew or had reason to believe that the fence was defective. In these circumstances we are satisfied that the question of whether he exercised reasonable care was one for the jury. Traill v. Ostermeier, 140 Neb. 432, 300 N.W. 375; Eixenberger v. Belle Fourche Livestock Exchange, S.D., 58 N.W.2d 235.

Upon the question of whether the plaintiff exercised reasonable care, plaintiff himself testified that he passed an approaching automobile beyond which he could not see at a speed of 45 to 50 miles an hour; that at the moment he passed beyond the glare of the approaching car’s headlights he saw the cattle upon the highway in his lane of traffic about 40 feet ahead of him, too late to avoid a collision. It is undisputed that the cattle came upon the highway from the side of the road opposite to plaintiff’s lane of travel. To reach the spot where plaintiff first saw the animal he struck, it would have been necessary for the animal to come out of the ditch adjoining the highway and walk across the northeast lane into the southwest lane after the approaching car had passed. It is highly improbable that the cattle would have traveled such a distance while the fast moving approaching car was traveling but 40 feet. The jury might well have found that plaintiff’s estimate as to the distance between -his car and the cattle at the time the two cars passed each other was substantially inaccurate. Plaintiff claims that there is no evidence of negligence because he was not exceeding a speed limit of 50 miles an hour. Merely keeping within the speed limit does not absolve a driver of an automobile of negligence. The statute, Section 39-0901, NDRC 1943, provides: “Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface, and width of the highway and any other conditions then existing.” In view of all the circumstances we are of the opinion that reasonable men could have concluded that the failure of plaintiff to reduce his speed below the admitted rate at a time when he was “blinded” by the glare of approaching headlights was not the exercise of reasonable care and that such lack of care contributed proximately in some degree to cause his damage. The question of contributory negligence was therefore one for the jury. See Ott v. Tschantz, 239 Wis. 47, 300 N.W. 766.

In addition to his challenge to the sufficiency of the evidence, plaintiff has also specified as error certain of the trial court’s instructions and comments.

The trial court instructed the jury:

“Every motor vehicle operating on a highway during a period from a half hour after sunset to a half hour before sunrise shall be equipped with two head lamps arranged and adjusted so that they will under normal atmospheric conditions and' on a level road produce a driving light sufficient to render clearly discernible a person two hundred feet ahead.”

Plaintiff does not say that the foregoing instruction is not a correct statement of the law, but that the instruction was not applicable to the facts of the case and could" have confused the jury to his prejudice. Plaintiff testified that at the time the collision occurred he was driving with his headlights dimmed and that his clear view was but 100 feet ahead. He had just passed a car traveling in the opposite direction and did not have time to elevate the beam of his headlights before the accident.

Section 39-1004, NDRC 1943, provides:

“Whenever a motor vehicle meets another motor vehicle on any highway, the operator, at a distance of not less than 500 feet, shall tilt the beams o.f the head lamps downward * * * lamps shall give sufficient illumination under normal atmospheric conditions to render clearly discernible and on a level road a person seventy-five feet ahead, * *

There was no mention of the foregoing statute in the instruction and there was no request for an instruction in connection therewith.

The instruction which was given should not have been given because the adequacy of plaintiff’s lights was not at issue in the case. However, we do not see how the giving of the instruction could have confused the jury or how it could have been prejudicial to the plaintiff. Plaintiff had testified that he could see clearly 200 feet with his bright lights on and 100 feet with his lights dimmed. Thus the only evidence in the case was that plaintiff’s bright lights conformed to the law as laid down by the court. We cannot assume that the jury was unaware of facts that are common knowledge today, to wit: that all automobiles are equipped with devices to depress the beams of headlights, and that both law and courtesy require the use of such devices by operators of vehicles which approach each other in the nighttime from opposite directions. We believe the jury could not but understand that plaintiff’s use of dimmers which reduced his clear vision to a distance of 100 feet ahead was not only permissible but was required by law. The instruction therefore could not have been prejudicial.

The second instruction specified as error is as follows: “The proximate cause of any injury is that which causes it directly or immediately, or through a natural sequence of events, without the intervention of another unforeseen independent and efficient cause. The fact that the injury would not have happened but for the act does not necessitate the conclusion that such act was the proximate cause of the injury. Where a person is negligent in some respect and between his negligence and the injury an entirely, unrelated and unforeseen cause intervenes, the second is generally regarded as the proximate cause and the first as the remote cause.” Plaintiff objects to this instruction, “because there is no evidence of an intervening independent and efficient cause.” At this point in the instructions the court was not delineating the issues in the action, but was defining the legal significance of the words “proximate cause”. We can find no fault with his attempt to make the definition more clear by drawing a contrast between proximate cause and remote cause.

The third instruction specified as error was that submitting the issue of contributory negligence to the jury. What we have already said in this opinion concerning contributory negligence disposes of this specification.

Lastly, plaintiff asserts that the court erred in commenting on the evidence. The transcript shows the following:

“Mr. Vogel: Q. During the period when his regular road was out and you said there was no gate there, did you see any of Mr. Flath’s cattle out? A. No.
“Miss Van Berkom: I move to strike that answer so I can make an objection.
“The Court: Strike it out.
“Miss Van Berkom: That is objected to on the grounds it is incompetent, irrelevant and immaterial, no bearing on the issues in this lawsuit, and not within the issues.
“Mr. Vogel: If the court please, the apparent purpose is to show if the cattle were out.
“The Court: I think I will sustain the objection. If I remember it the defendant denied his cattle were around, and this would be a collateral issue. I don’t think there is any proof that they had been running around except this one time they were out.”

The remarks of the trial court last above quoted are asserted to be error. These remarks do not constitute a comment on the testimony in the objectionable sense in that they comment upon the credibility or weight to be given to testimony. They merely state what the record showed as to certain matters. If the statement of the court was accurate, and it is not challenged on that ground, it was not error. S3 Am.Jur., Trial, Sec. 79, p. 78; 64 C.J., Trial, Sec. 100, p. 97.

Since we find no prejudicial error in the record the judgment of the district court is affirmed.

MORRIS, C. J., and SATHRE and GRIMSON, JJ., concur.

JOHNSON, J., did not participate.


author: JOHNSON, Judge.

text:
    Lee CLARK, Plaintiff and Respondent, v. Henry JOSEPHSON, Defendant and Appellant. Ella CLARK, Plaintiff and Respondent, v. Henry JOSEPHSON, Defendant and Appellant.
    Nos. 7462, 7463.
    Supreme Court of North Dakota.
    Oct. 29, 1954.

      J. K. Murray, Bismarck, for defendant and appellant.
    Strutz, Jansonius & Fleck, Bismarck, for plaintiffs and respondents.
   JOHNSON, Judge.

This litigation arose out of a collision between the automobiles owned by tfte plaintiff, Lee Clark, and Henry Josephson, on the 12th day of September, 1952, at about 5 :25 p. m. The plaintiff, Lee Clark, and his wife, Ella Clark, were on their way home. The collision occurred near the intersection of Front Avenue and Third Street in the City of Bismarck, North Dakota. The plaintiff, Lee Clark, was driving south on Third Street and the defendant was driving east on Front Avenue.

Both of the plaintiff’s actions involve the same facts. The cases were consolidated for trial in the District Court of Burleigh County, North Dakota, and both were argued on appeal together. We will consider both appeals in this one opinion.

The plaintiff, Lee Clark, alleges that the defendant, Henry Josephson, was negligent in the operation of his automobile, and operating it under the influence of intoxicating beverages, and that his negligence and carelessness was the proximate cause of the damages to the plaintiff’s 1946 4-door Oldsmobile. He seeks damages to his automobile and for personal injuries. The plaintiff, Ella Clark, claims damages for personal injuries by reason of the negligence of the defendant.

The defendant answered, admitting the collision between Lee Clark’s car and his, and the time and place thereof. He denies the allegation of negligence and alleges that the collision between his car and Lee Clark’s car was caused by the contributory negligence of the plaintiff, Lee Clark. The defendant also counterclaimed for damages. The plaintiff denied defendant’s counterclaim. Upon the trial of the action on the motion of the defendant, the counterclaim was dismissed.

The plaintiff, Ella Clark, alleges that she was riding as a guest in the automobile owned and operated by her husband, Lee Clark; that by reason of the collision between the defendant’s car and the car of her husband, Lee Clark, she was injured; that the negligence and carelessness of the defendant was the proximate cause of such injury.

The defendant answered the complaint of Ella Clark, denying negligent operation of his automobile, admitting the approximate time and place of the collision, and asserting that at the time thereof, the plaintiff, Ella Clark, and her husband, Lee Clark, were engaged in a joint enterprise; that the plaintiff, Ella Clark, failed to do anything to prevent her husband’s negligent operation of his automobile and consented to and adopted the negligent driving of his car. The defendant also counterclaimed in this action. The plaintiff, Ella Clark, denied defendant’s counterclaim. On defendant’s motion at the time of trial his counterclaim was dismissed.

The jury, in the action of Lee Clark against the defendant, rendered a verdict of $290 for the plaintiff, and in the action of the plaintiff, Ella Clark, rendered a verdict in her favor in the sum of $1300.

The defendant made a motion for a new trial in both actions. The motions were denied by the trial court. The defendant appealed from both orders denying the motion for a new trial and also appealed from the judgments which were entered upon the verdicts in favor of the plaintiffs, Lee Clark and Ella Clark.

In connection with the motions for a new trial in both actions, in the District Court, the defendant set forth nine specifications of error and these specifications are also asserted on this appeal. The specifications of error on appeal are identical in both cases. They are a restatement of the specifications of error on the motions for a new trial. The defendant also specifies that the court erred in denying the motions for a new trial in both cases and points out alleged insufficiency of evidence on the motions for a new trial.

We deem it unnecessary to set forth in detail all of the specifications of alleged error, specifications of insufficiency of the evidence, and contentions of the defendant and appellant, that the evidence is conclusive in several particulars. He has grouped all of the alleged errors of law raised by the specifications and the insufficiency of the evidence, as follows:

“1. Misconduct of counsel for plaintiffs, which was highly prejudicial to the rights of the defendant.
“2. No proper measure of damages established by the evidence with reference to the automobile.
“3. Error of law in the admission in evidence of a copy of a repair bill on the automobile.
“4. Error in admitting the repair bill in rebuttal when the defendant offered no evidence pertaining to the amount of repairs to the automobile.
“5. No evidence of any nature establishing any particulars with reference to damages to the automobile.
“6. Error in the Court’s instructions pertaining to damages to the automobile, when there was no evidence sustaining the theory of damages set forth in the instructions.
“7. No medical testimony pertaining to the personal injuries of Ella Clark, the award of $1300.00 being based not on evidence but on bias and prejudice and without any foundation established for such award. That the amount of such award is highly excessive.”

Under this grouping the defendant and appellant has apparently abandoned many of the alleged specifications of error, as they are not argued under any of the seven points just mentioned. Issues or assignments of error not argued in briefs are deemed abandoned. First State Bank of Kief v. Osborne-McMillan Elevator Co., 53 N.D. 551, 207 N.W. 37. Errors assigned in the brief, but not argued, will be deemed abandoned. Kelly v. Pierce, 16 N.D. 234, 112 N.W. 995, 12 L.R.A.,N.S., 180; Olson v. Armour & Co., 68 N.D. 272, 276, 280 N.W. 200, 201.

We will now discuss the errors as grouped by the defendant and appellant in the order in which they are presented.

The appellant specifies misconduct of counsel for plaintiffs in several particulars, relative to questions propounded to Mr. Bossert, a policeman, one of the witnesses for the plaintiffs, in which he was asked whether as a result of his investigation and talk with the parties, criminal charges were made, and as to whether he was present when Mr. Josephson entered a plea of guilty to criminal charges arising out of the accident, and whether he had heard him enter a plea. This witness was further asked if he had been present at the time of the hearing described in Exhibit 1. Upon objection to Exhibit 1, it was withdrawn and the objection thereto was sustained. All this type of testimony was excluded. Where improper questions are asked to which objections are sustained, the prejudicial effect of the asking of such questions, is a matter in the first instance, for the consideration of the trial court. Under the circumstances disclosed by the record, the court having sustained objection to the questions, the same do not constitute reversible error. Beardsley v. Ewing, 40 N.D. 373, 168 N.W. 791. This is particularly true in view of the admonition in the charge to the jury concerning this line of testimony in which the court instructed the jury to disregard remarks by counsel for plaintiff concerning any alleged criminal proceedings against the defendant as having nothing to do with the law suit.

Upon cross-examination of the defendant he was asked:

“Q. Will you state whether as a result of this accident you entered a plea of drunken driving?”

This question was objected to. It was never answered. This was a proper question. Evidence of a plea of guilty in a criminal charge arising out of an automobile accident is generally admissible. U. S. v. Standard Oil Co. of Cal., D.C.Cal., 60 F. Supp. 807 (On appeal to circuit court of appeals, 9 Cir., 153 F.2d 958, and to the U. S. Supreme Court, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067, this point was not referred to in the opinions.) ; Morrissey v. Powell, 304 Mass. 268, 23 N.E.2d 411, 124 A.L.R. 1522 (admissible though plea withdrawn) ; Remmenga v. Selk, 150 Neb. 401, 34 N.W.2d 757 (reckless driving); Moore v. Skyline Cab, 134 W.Va. 121, 59 S.E.2d 437.

The evidence of a plea of guilty to a criminal charge arising out of an automobile accident is, however, not conclusive, and may be explained. Podolsky v. LaForge, 1 Cir., 92 F.2d 954; Moulin v. Bergeron, 135 Conn. 443, 65 A.2d 478; Roper v. Scott, 77 Ga.App. 120, 48 S.E.2d 118 (driving while intoxicated); Morrissey v. Powell, supra; Atkins v. Churchill, 30 Wash.2d 859, 194 P.2d 364 (charge of entrusting automobile to unlicensed minor); Utt v. Herold, 127 W.Va. 719, 34 S.E.2d 357.

It was held in the case of Engstrom v. Nelson, 41 N.D. 530, 171 N.W. 90, 91, in which the plaintiff sued the defendants for damages for assault and battery, that a plea of guilty on a criminal charge of assault and battery was admissible as an admission against interest. The court in that connection said:

“It is admissible in evidence to show that a witness has been convicted of a crime for the purpose of affecting his credibility. State v. Kent, 5 N.D. 516, 67 N.W. 1052, 35 L.R.A. 518; Schnase v. Goetz, 18 N.D. 594, 120 N.W. 553; State v. Oien, 26 N.D. 552, 145 N.W. 424. See State v. Nyhus, 19 N.D. 326, 124 N.W. 71, 27 L.R.A.,N.S., 487; State v. Hazlet [Hazlett], 16 N.D. 426, 438, 113 N.W. 374.
“Evidence also is admissible which shows the entry of a plea of guilty and a conviction of a witness for the same assault and battery in a criminal case, as an admission of the witness against his interest. Satham v. Muffle, 23 N.D. 63, 135 N.W. 797; 5 Corpus Juris 685.”

We believe that upon cross-examination of the defendant it was permissible to question him as to whether or not he had entered a plea of guilty to a drunken driving charge arising out of the same facts as these civil actions for damages based on the alleged negligence of the defendant. Such testimony is properly admissible as an admission against interest.

Since evidence of a plea of guilty by a defendant in a criminal action arising out of the same facts as these civil actions, is admissible, it cannot be said that an unsuccessful attempt to procure such evidence constitutes misconduct.

It is also contended that the defendant was entitled to a mistrial by reason of an alleged statement of plaintiff’s counsel in his opening statement to the jury. The record is not complete in this connection as it does not contain the alleged objectionable statement of plaintiff’s counsel. The record insofar as it is available, states:

“Mr. Murray: (During Mr. Strutz’ opening statement to the Jury:) Counsel for the plaintiff now states to the Jury that the defendant was arrested for drunken driving. I would like to have the Court confirm that fact.
“The Court: I think that is the record so far.
“Mr. Murray: The defendant now moves for a mistrial; that that statement made by counsel to the Jury is highly prejudicial, not admissible in evidence; that the plaintiff has to prove his case by showing the defendant is guilty of negligence.
“Mr. Strutz: If the Court please, our evidence shows that as a result of that the defendant entered a plea of guilty to drunken driving which is an admission against interest and is admissible in evidence.
“Mr. Murray: On that statement of counsel, the defendant again moves for a mistrial because that statement is highly prejudicial, and that fact is not admissible in evidence here; the plaintiff must prove negligence and that the plaintiff’s injuries, if any, were the proximate result of such negligence; and that his case must stand or fall on that. This statement is highly prejudicial, is not admissible in evidence, and we renew our demand for a mistrial.
“Mr. Strutz: I would like to be heard on that.
“The Court: The motion is denied.” Mr. Strutz’ statement,
“Our evidence shows that as a result of that the defendant entered a plea of guilty to drunken driving”

is, at least by inference, a statement of what the plaintiff intended to show. In absence of the record of the original statement to which defendant’s counsel objected, and by inference the statement just quoted indicates that the plaintiff’s counsel was merely stating what the plaintiffs intended to show, it does not appear that any prejudice resulted from the remark. Prejudice will not be presumed in view of the court’s instructions to the jury upon this matter. Lund v. Upham, 17 N.D. 210, 116 N.W. 88.

The court charged the jury in this connection as follows:

“The jury is instructed to wholly disregard any and all remarks of either counsel either in their opening statements, or throughout the trial, or in their arguments, which have been stricken out by the Court, and particularly remarks by counsel for plaintiff concerning any alleged criminal proceedings against defendant as they have nothing to do with this lawsuit.”

In the denial of a mistrial, the court has a wide discretion.

“The granting of a mistrial is an extreme remedy * * *. All the authorities agree that the practice should be resorted to only ‘when further proceedings therewith would be productive of great hardship or manifest injustice’.” Hoffer v. Burd, 78 N.D. 278, 49 N.W.2d 282, 292.
“Ordinarily when a motion is made for a mistrial it is upon the occurrence of some incident of prejudicial misconduct at the trial or when incompetent matters have been brought to the attention of the jury the damaging effect of which cannot be removed by admonition and instructions and when something has happened affecting the propriety and validity of the proceedings.” Loveland v. Nieters, N.D., 54 N.W.2d 533, 537.

Any damaging effect of any remark made by counsel for the plaintiffs in his opening statement was removed by the instructions to the jury. We are satisfied that the incident upon which the motion for a mistrial was based, and which occurred near the beginning o"f the trial, was not prejudicial and that the motion for a mistrial was properly denied.

We will next consider the specifications of error and of the insufficiency of evidence as grouped by appellant under numbers two, three, four and five.

The appellant specified that the evidence was insufficient to show that the defendant was guilty of negligence which was the proximate cause of the damages to the plaintiffs, and that there was no evidence to show that the defendant did not use due care. The defendant also specifies that there was no competent evidence that the defendant’s brakes were defective. After the accident the evidence shows that the brakes of the defendant’s automobile were defective. The evidence on negligence and contributory negligence is squarely in conflict.

The plaintiffs both testified that plaintiff Lee Clark stopped at the stop sign on Third Street before entering Front Avenue; that they looked to the left and then the right, and then turned left onto Front Avenue, and as they came to the Capital Laundry, they had to stop behind some telephone trucks as there was traffic moving from east to west in the north lane on Front Avenue. They both claim that they came to a complete stop and that the defendant’s car hit them from the rear while they were parked behind the Northwestern Bell telephone trucks.

The defendant testifies that he was coming from the west proceeding east on Front Avenue; that as he approached the intersection of Front Avenue and Third Street, Lee 'Clark’s car, without stopping, turned to the left onto Front Avenue immediately in front of him; that the plaintiff, Lee Clark, did not give any signal that he was turning to the left; that he stopped suddenly; that the defendant’s car barely or lightly touched the rear end of Lee Clark’s car. Edith Maltby, who was riding with the defendant, also claims that the plaintiff, Lee Clark, did not stop at the stop sign at the intersection of Third Street and Front Avenue.

On the basis of this testimony as to negligence and contributory negligence, the jury rendered a verdict for the plaintiff, Lee Clark, for damages to his automobile and rendered a verdict in favor of ■ Ella Clark for her injuries.

Where the evidence is in conflict and reasonable men might draw different conclusions therefrom, this court on appeal will disturb neither the verdict of the jury based on such evidence nor the order of the trial court denying a motion for a new trial on the ground of insufficiency of evidence. Jacobs v. Bever, N.D., 55 N.W.2d 512; Reuter v. Olson, N.D., 59 N.W.2d 830.

The defendant next challenges the sufficiency of the evidence with reference to the damages to the plaintiff’s car. He asserts that there was no evidence pertaining to the market value of the car before and after the collision, and argues that the evidence elicited as to the value of the car of the plaintiff, Lee Clark, is insufficient because it does not designate the time and place of the value asserted by the plaintiff of his car. The testimony shows that the plaintiff, Lee Clark, stated that the value of his 1946 Oldsmobile before the accident was $850; that the value after the accident was $550, or a difference of $300. This evidence is not disputed. It was received over the objection that it did not constitute a proper or legal measure of damages. It was sufficient to establish the value of the plaintiff’s car before and after the accident. See Hermes v. Markham, N.D., 60 N.W.2d 267.

The time and place of the accident was alleged in paragraph one of the complaint in both cases and admitted in paragraph two of the defendant’s answer in each case. The testimony of the plaintiff, Lee Clark, shows that the accident happened shortly after 5 p. m. on September 12, 1952, and that the place thereof was Front Avenue in the city of Bismarck, near the Capital Laundry. When that evidence, which was before the jury, is taken in connection with the evidence of the value of Lee Clark’s automobile both before and after the accident, the jury had already heard and was aware that the testimony given by Lee Clark referred to the value of his car in the city of Bismarck at the time and place of the accident. The testimony as to the value is not objectionable on the basis that it was indefinite as to time and place. The contents of the pleading's were put before the jury in the instructions of the trial court, and the defendant in his answers in both actions had admitted the time and place of the accident. The jury, therefore, was fully cognizant that the testimony as to value of the automobile of plaintiff, Lee Clark, referred to the value of his automobile before and after the accident in the city of Bismarck, North Dakota.

The general rule as to measure of damages in a case of this type is stated in Part 1, Volume 6, Blashfield’s Cyclopedia of Automobile Law and Practice, 44, 45 and 47, Section 3415.

“The general rule is that the measure of damage for injury to personalty by the wrong of another is the difference between the value of the property before and after the injury; the value meant being the market value, if there is one. (Emphasis supplied.)
“Therefore the general rule for measurement of damages to an automobile by, an injury to "it, where the machine is only partially destroyed, is the difference between the reasonable market value of the automobile immediately before the injury and its fair market value immediately after such injury.
' “The general rule, without qualifications, only applies if the repairs will make the damaged vehicle as good as new.”

The jury, however, was not solely dependent upon the evidence of Lee Clark as to the value of his automobile before and after the accident. The plaintiff introduced in evidence Exhibit 3, which is an itemized statement of the Davis Chevrolet Company, showing the repair to Lee Clark’s 1946 Oldsmobile. This exhibit shows that the total repairs amounted to $262.80. The plaintiff authorized the repair work to be done over his signature. The witness, Goodwin Lien,' the body shop foreman at the Davis Chevrolet Company, identified the repair bill. He testified that the work set out therein was actually performed and that the service was rendered by him or men working under his supervision. The repair bill was admitted over the objection of the defendant on the ground that it was improper rebuttal and that it constituted a part of Lee Clark’s main case, and that there was no evidence with regard to the damage to the car and on the further ground that since the defendant had offered no evidence in regard to the damages to the car, there was nothing to rebut. In response to this objection, the plaintiffs contend that the defendant’s testimony that he just barely touched the rear end of the plaintiff’s car; that he was going less than 5 miles per hour at the time of the collision, constitute this testimony proper rebuttal.

The plaintiff, Lee Clark, testified that he had his car repaired at the Davis Chevrolet Company and that the damage thereto was as shown by the repair bill of September 19, 1952, and that the damage to the car was caused by the accident on September 12, 1952. When all of the evidence concerning the repair to the Lee Clark car is considered, it is sufficient and was properly admitted. Since there is no contention that the car was worth less after it was repaired than before the accident, the evidence presented comes squarely within the rule of damages as announced by Blashfield. The objection that it was improper rebuttal is not sustainable. The admission in rebuttal of testimony which should have been offered in chief rests in the sound discretion of the trial court. Petersburg School District of Nelson County v. Peterson, 14 N.D. 344, 103 N.W. 756; Pease v. Magill, 17 N.D. 166, 115 N.W. 260. The jury’s verdict as to the damages resulting to Lee Clark’s car is in line with his testimony as to the value thereof before and after the accident. He had testified to a value difference of $300 and the repair bill shows the total repairs that went into the car of the value of $262.80. The jury awarded him $290. There was no error in the admission of this evidence. This disposes of the specifications of error and the insufficiency of the evidence grouped under headings two, three, four and five.

It is’ asserted under point number six that the court erred in instructing the jury pertaining to the damages to the automobile of Lee Clark on the ground that there was no evidence sustaining the theory of damages set forth in the trial court’s instructions. The trial court properly instructed with reference to damages to the plaintiff’s motor vehicle as follows:

“In determining the amount of damages to a motor vehicle, as it may become necessary for you to consider the same in this case, you are instructed that you will find the difference between the reasonable market value of the motor vehicle in question immediately before the accident and collision in question, and the reasonable market value of said motor vehicle immediately after the accident and collision.”

It is apparent that the verdict of the jury followed this instruction. The jury had before it the testimony of the plaintiff as to the value before and after the collision, and in addition thereto the evidence of Goodwin Lien supporting and corroborating Lee Clark’s testimony. The jury finding in this connection is supported by the evidence.

Under point number seven, the appellant contends in the case of Ella Clark, plaintiff, that since there was no medical testimony pertaining to her personal injuries, the award of $1300 was not based on any evidence, but on bias and prejudice; that it is highly excessive. Ella Clark was with her husband, Lee Clark at the time of the collision of the defendant’s car with Lee Clark’s automobile. She was sitting in the front seat at the right of her husband at the time of the impact between the two cars, holding her two year old boy in her lap. She testified that at the time of the impact she hit her head on the windshield and her hip on the door handle, and that she hurt both her neck and her back. After the accident she went to the police station and thereafter to the hospital where x-rays were taken. She was instructed with reference to treatment of her injuries. She went from the hospital to her home and was confined to her bed for four weeks. She testifies as follows:

“Q. And as a result of your instructions from the doctor, did you go to bed? A. Yes, I went to bed.
"Q. And how long did you remain in bed? A. For a week the first week, and for- about three weeks I couldn’t do nothing, I was just on my back; I had a splitting headache all the time, and my head hurt all the time; I couldn’t stoop.
“Mr. Murray: Wait a minute. We object to this witness giving a speech. She is not responsive, and she keeps giving a speech.
“Q. Did you spend any time in bed ? A. Yes.
“Q. And how long did you spend in bed altogether? A. Four weeks.
“Q. And during that time did you receive any treatments ? A. Yes.
“Q. And did you do anything about your injuries? A. Yes.
Q. What did you do? A. I went up to see Dr. Heiba-at Hebron.
“Q. Mrs. Clark, as a result of the instructions that the doctor gave you did you do anything about your injuries? Did you take any treatments? A. Yes.
“Q. What was that? A. Flot pads, heating pads.
“Q. Electric heating pads? A. Yes. '
“Q. And you did that? A. Yes.
“Q. And how long were you in bed, did you say? A. Four weeks.”

Ella Qark further testified that she had splitting headaches all the time; that her head hurt all the time; that she could not stoop; that she employed a person to do her housework; that for this work she and her husband paid $25 per week and room and board which was estimated at the value of $12.50 per week; that after spending four weeks in bed she was still unable to do any lifting or reaching and that she still had pain; that after the treatments given by Dr. Heiba (Heupel) of Hebron she was still suffering headaches, pain and backaches; that as of the time of the trial she was unable to do all her housework and that her husband helped her. No medical testimony was offered.as to the nature of her injuries. The' testimony of Ella Clark, however, is uñdisputed. Lee Clark testified his wife was injured in the collision. Her injuries resulted therefrom.

There is no fixed rule by which compensation for pain and suffering may be measured. Human suffering is not a commodity; it has no price, and therefore, it was left to the best judgment and sound discretion of the jury to determine compensation for the injuries sustained by Ella Clark and the pain and suffering arising therefrom. Each case must be determined upon its own peculiar facts. The determination of the damages to Ella Clark was within the province of the jury based on all the evidence and the instructions of the court. We are agreed that when all the pertinent facts in the case of Ella Clark are considered, it cannot be said that the amount of the verdict is so large or excessive as to indicate passion or prejudice by the jury. The facts presented to the jury were sufficient to warrant the verdict to Ella Clark. In the case of Mischo v. Von Dohren, 126 Neb. 164, 252 N.W. 830, it was held that $1900 damages to a 54 year old farmer for injuries to head and lower region of back, causing nervousness and inability to stoop, was not excessive, although medical examinations did not disclose organic basis for the complaint of pain nor ascertain any satisfactory reason or explanation why the plaintiff in that case should not have had a reasonably prompt and full recovery.

Medical testimony may be used for the purpose of increasing or minimizing the amount of damages. Blashfield Cyclopedia of Automobile Law and Practice, Volume 10, Part I, Section 6421. We have not found, nor has appellant pointed to any cases holding that substantial damages may not be awarded in absence of medical testimony.

The appellant cites three cases: Vaden v. Holmes, 39 Cal.App.2d 580, 103 P.2d 1002; Cushing Coca-Cola Bottling Co. v. Francis, 206 Okl. 553, 245 P.2d 84; Franklin v. Kansas City Public Service Co., 239 Mo.App. 151, 186 S.W.2d 546; as a basis for the contention that before substantial damages may be awarded for personal injuries, medical testimony must be presented. Under the peculiar facts involved in these cases it was held that the alleged mental pain and physical suffering must be produced by, or be connected with, or result from the injury which was the subject of the action, and to establish a causal connection, if any, between the pain and the physical suffering it was necessary to produce medical testimony to show such relationship. These cases do not establish the rule for which the appellant contends in this case. The case of Ella Clark does not present the same issue as was involved in each of these three cases. In her case there is no doubt of the causal connection between the injuries and the collision of the defendant’s car with her husband’s car on September 12, 1952. Her injuries were such as to confine her to her bed for four weeks. These cases were tried in'December, 1953, and the evidence shows that Ella Clark was still suffering from the effects of the injuries received in the collision. The jury’s verdict of $1300 was based upon sufficient evidence and was not excessive.

We find no prejudicial error in the record of the trial of these cases. The motions for a new trial were properly denied by the trial court. The judgments and the or- , ders denying motion for a new trial in both cases are affirmed.

MORRIS, C. J., and GRIMSON, SATH-RE and BURKE, JJ., concur.