author: EUGENE A. BURDICK, District Judge. EUGENE A. BURDICK, District Judge.

text:
    Raymond HOGUE, Edward Hogue, Roy Small, Thore Naaden, A. R. Tavis, Paul Wachter, and Eugene Wachter, Plaintiffs-Appellants, and The State of North Dakota, Intervenor-Appellant, v. Ervin BOURGOIS, Milan G. Ward, Birlea O. Ward, Robert G. Ward; Imogene Ward Christensen, Claire Ward Engelhardt, and Steve Ward, Heirs of R. D. Ward, deceased; Calile Campbell, Stephen Callaway, James Callaway and Virginia Callaway Williamson, Heirs of Mrs. J. C. Calloway, deceased; Mrs. A. Lincoln Shute, Albert Bourgois, Martha Schmidt, Christine B. Bechill, Paul Bourgois, Ruth Bourgois, Ervin Bourgois, as Guardian of the Person and Estate of Ruth Bourgois, Incompetent, Sidney Bourgois, Gilbert Bourgois, Helen Bourgois, Josephine Hoge, Ira Hoge, William Hoge, Clara Fristad, Paul Hoge; Norman Hoge, Robert Hoge, Marlys Hoge Riker, Jerome Hoge, Catherine E. Morris, as Guardian of the Person and Estate of Jerome Hoge; May Alice Sims, Henry Entzel, Mathilda Entzel, Delilah Wetzstein, Katherine Borden, James T. McGillic, Blossom L. McGillic, Claude A. Henderson, Charles Zachmeier, Soder Investment Co., a corporation, Northern Pacific Railway Company, a corporation, Continental Oil Company, a corporation, The Pure Oil Company, a corporation, The Carter Oil Company, a corporation, Phillips Petroleum Company, a corporation, Shell Oil Company, a corporation, Federal Farm Mortgage Corporation, a corporation, Morton County, a public corporation, all persons unknown claiming by, through, or under the following deceased persons, viz., Martin Bourgois, Aldyth Ward, Gus Hoge, and Helene L. Bourgois, and all persons unknown claiming some interest or estate in or lien or encumbrance upon the property described in the complaint, Defendants-Respondents.
    No. 7469.
    Supreme Court of North Dakota.
    May 11, 1955.
    Rehearing Denied July 1, 1955.

      Strut?, Jansonius & Fleck, Bismarck, for appellants. ■ ■
    ■Charles D. Cooley, Mandan, for plaintiffs-appellants.
    Paul Benson, Atty. Gen., and C. É. Brace, Asst. Atty. Gen., for intervenor and appellant the State of North Dakota.
    Rausch & Chapman, Bismarck, for defendant Ervin Bourgois, individually and on behalf of all the heirs of Martin Bour-gois, deceased.
    C. L. Young, Bismarck, for defendants Milan G. Ward, Birlea 0. Ward, Robert G. Ward and the heirs of R. D. Ward, the heirs of Mrs. J. C. Calloway, Mrs. A. Lincoln Shute, and the heirs of Aldyth Ward.
    Register & Thompson, Bismarck, for defendant Soder Investment Company.
    Cox, Cox, Pearce & Engebretson, Bismarck, for defendants Continental Oil Company, The Pure Oil Company, The Carter Oil Company and Phillips Petroleum Company.
   EUGENE A. BURDICK, District Judge.

This is an action to quiet title and to determine adverse claims to a tract of land surveyed and platted as “Bourgois Island” in Burleigh County. The plaintiffs allege title by appropriate, conveyance from the State of North Dakota by its Board of University and School Lands in June, 1950 and contend that Bourgois Island formed as an island in the Missouri River and grew to its present size by the accretion of alluvial deposits. The defendants by answer deny the allegations of ownership by the plaintiff and allege ownership ■of Bourgois Island by virtue of various ■grants in the chain of title from the pat-entees of the federal government. The action was tried to the Hon. George Thom, Jr., District Judge, without a jury. The district court made its findings of fact, conclusions of law and order for judgment and judgment was entered thereon in favor -of the defendants and against the plaintiffs. The plaintiffs have perfected an appeal from the judgment and have demanded a •trial anew in this court.

The uncontroverted testimony shows that the Missouri River in the vicinity of the lands in controversy flows in a southerly ■direction. In this locality the west bank of the river is Morton County and the east bank is Burleigh County. At the time of the original government survey, in 1876 the riparian lands on the east bank were Lots 1, 2, 3, and 4 of Section 27, Lots 1, 2, .and 3 of Section 34, and Lot 1 of Section .33 in Township 140 North of Range 81 West of the Fifth Principal Meridian and Lot 1 of Section 4 in Township 139 North ■of Range 81 West of the Fifth Principal Meridian. These lots were surveyed by the federal government and meandered on the plat to conform to the flowage of the Missouri River. The lots claimed by the defendants were eventually patented and conveyed in varying interests to the defendants.

In about the year 1904 a sand bar formed in the Missouri River immediately to the west of Lots 1, 2, and 3 of said Section 34. This bar formed by the deposit of alluvial .accretions to the bed of the stream overlying stratum of earth which had never previously been patented or granted and became the nucleus of Bourgois Island. When first recognized the bar comprised between fifteen and twenty acres. The current of the stream bifurcated and formed a channel on either side of the bar. A navigable channel has always existed ■on the west side of the bar. At about the .same time the bar appeared the east channel of the river commenced to erode the mainland on the east. River boats navigated the channels on both sides of the bar. The erosion of the mainland proceeded eastward at a rate of about twenty to forty rods per year until about 1922 at which time the east channel reached its farthermost limits. In this process patented lands claimed by defendants were totally destroyed. As the east channel moved eastward the east side of the bar which formed the west bank of the east channel grew progressively and imperceptively by the deposit of alluvion by the process of accretion. By 1928 the bar, by reason of aggradation which occurs in the Missouri River during periods of high water, had been built up in elevation to the point where it had become fast dry land comprising several hundred acres and was capable of being used for grazing and other agricultural purposes and had achieved the stability and dignity of an island. This is evidenced by the fact that in the spring of the year 1928 the State Land Department assumed control over this island and leased it to W. F. and F. L. Schafer for agricultural purposes for the season of 1928.

In the course of time, as the river spent its force in the lengthened east channel, the west channel resumed the entire burden of the stream. The east channel gradually filled up by sedimentation from the more sluggish current. By 1942, the east channel had stopped flowing altogether during periods of low water, but continued to flow during periods of high water. Continued exposure to high water increased the ag-gradation of the bed of the east channel and added accretions to the mainland as well as to the island so that the island and the mainland became virtually joined except during periods of high water. The island and the mainland maintained their individual character during the time the east channel of the river changed from a navigable and destructive current to a harmless strip of lowlands connecting the island to the mainland. At no time did the current in the east channel of the river reverse its action and appreciably erode the island or materially restore to the mainland alluvial deposits by accretion, although there is evidence that as the stream in the east channel ceased to. flow, alluvial deposits .were restored to the mainland to the line of contact between it and the island in the bed of the east channel. See illustrative sketch by the court.

The defendants do not contend nor does the evidence establish that the defendants, or those through whom they claim have perfected title upon any theory of adverse possession or prescriptive use.

The defendants contend only that while the lands of their' predecessors in interest were washed away by erosion of the river, lands, by alluvial accretions, have been restored to the identical location of the former lands the boundaries of which can be re-established and hence that they have a title to the contrary of that claimed by the plaintiffs upon any theory of accretion's. This argument conveniently ignores the fundamental basis of riparian rights, as we shall'- demonstrate by examining the applicable statutes in the light of the facts in this case. The defendants do not contend and the evidence does not show that the alluvial accretions comprising Bour-gois Island were added gradually and im-perceptively to their mainlands.

As a preliminary statement, it is clear from the undisputed testimony in this case and from prior holdings of this court that the Missouri, River is a navigable stream in this state. Gardner v. Green, 67 N.D. 268, 271 N.W. 775, and State v. Loy, 74 N.D. 182, 20 N.W.2d 668.

Prior to amendment in 1953, § 47-0608 NDRC 1943 provided as follows:

“Islands and accumulations of land formed in the beds of streams which are navigable belong to the state, if there is no title or prescription to the contrary.”

A contrary rule is, of course, provided by statute in the case of a stream which is not navigable. Section 47-0609 NDRC 1943. See also Sections 47-0114 and 47-0115 NDRC 1943.

The phrase “if there is no title or prescription to the contrary” in Section 47-0608 contemplates such exceptions as arise when title to an island was vested in the federal government upon admission of the state to the Union or when the state has conveyed title to a person, as was done in the instant case, or when a title is established by adverse possession for the appropriate prescriptive period.

In State v. Loy, supra, it was held that title to the lands under navigable waters vested in the State of North Dakota as an incident of sovereignty and, conformable to Section 47-0608 NDRC 1943, that the title to an island which was formed by alluvial accretions to the bed of a navigable stream but which was not fast dry land at the time North Dakota was admitted to the Union is vested in the State of North Dakota.

The title of the State of North Dakota to lands below low water mark of a navigable stream is coextensive with the bed of the stream as it may exist from time to time. This is a necessary corollary to the rule that the owner of lands riparian to a navigable stream owns title to the low water mark. Gardner v. Green and State v. Loy, supra. Were the rule otherwise, the dominion and control of navigation by the state (subject only to the limitations of the Commerce Clause of the Federal Constitution), would depend on the vagaries of the river, permitting the state control where the river adhered to its course at the time of admission of the State to the Union and denying the State control where the river, in the process of erosion, subsequently migrated and submerged patented lands. This would lead to absurd and whimsical results.

As the riparian owner acquires title to additions to his riparian lands by accretion and reliction, he likewise loses title to such portions as are eroded and washed away by a navigable stream. Oberly v. Carpenter, 67 N.D. 495, 274 N.W. 509; 56 Am.Jur., Waters, Sec. 477. Thus, in the case at bar, as the Missouri River eroded and submerged the mainlands on the east .bank of the river, including the patented lands claimed by the defendants and their predecessors in interest, and utterly destroyed such lands to the depth of the channel below low water mark, the title to the submerged lands passed by operation of law to the State of North Dakota. Consequently, as the nuclear bar grew by the gradual and imperceptible process of accretion from the shore opposite the erosion and rebuilt land where the submerged lands had been, the newly formed island or accumulation of land was built entirely upon lands owned by the State of North Dakota.

. Thus, it is clear that the defendants cannot invoke any of the exceptions of Section 47-0608 NDRC 1943 to the case at bar for the reason that the nucleus of the island or accumulation of land and all additions thereto had formed as alluvial accretions to the bed of a navigable stream the title to which bed was vested in the State of North Dakota. State v. Loy, supra. Inasmuch as the nuclear bar, from which Bourgois Island developed, .had not become fast dry land at the time North Dakota was admitted to the Union title to it vested in the State of North Dakota. State v. Loy, supra.

It is well-settled law in this state that the plaintiff in an action to determine adverse claims and quiet title must recover, if at all, upon the srength of his own title and not upon the weakness of the title of his adversary. Sailer v. Mercer County, 77 N.D. 698, 45 N.W.2d 206, 22 A.L.R.2d 988.

There remains to be determined, therefore, whether the usual rules of accretion and reliction may be applied to such an island or accumulation of land so as to confer upon the owner of the island or accumulation of land title to all additions formed thereto from natural causes.

Section 47-0605 NDRC 1943 provides as follows:

“Where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right-of-way over the bank.”

The foregoing statute is essentially a restatement of the well-established common law rule governing riparian rights. This rule was aptly applied by this court in Oberly v. Carpenter, supra, where, as in the case at bar, the tract of land out of which the controversy arose was formed gradually and by imperceptible degrees and not by avulsion, that is, its formation could not be seen at any particular moment and could only be noted after the lapse of some time. In that case, speaking for the court, Judge Nuessle stated [67 N.D. 495, 274 N. W. 513]:

“The defendants further insist that, in any event, the new land thus, added to the plaintiff’s, land and to which plaintiff claims title under section 5473, cannot extend beyond the section line between section 24 and 25 and section 23 and 26. The first answer t.o this contention is that at the time of the survey this section line was not run north, of the river. The- second" and conclusive answer is that the law governing riparian rights has no regard for artificial boundary, lines, whether between sections or their subdivisions, or between counties, states, or nations. See the illuminating opinion of Mr. Justice Brewer in [State of] Nebraska v. Iowa [143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186], supra. See, also, Widdecombe v. Chiles, 173 Mo. 195, 73 S.W. 444, 61 L.R.A. 309, 96 Am.St.Rep. 507; Yearsley v. Gipple, 104 Neb. 88, 175 N.W. 641, 8 A.L.R. 636; Doebbeling v. Hall, 310 Mo. 204, 274 S.W. 1049, 41 A.L.R. 382. The controlling rule as it applies in the instant case may be stated thus: Where a water line is the boundary of a given lot, that line, no matter how it shifts, remains the boundary, and • a deed describing the lot by number or name conveys the land up to such shifting line exactly as it does up to a fixed side line and conveys all accretion thereto.’ Jefferis v. East Omaha Land Co. [134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872], supra.”

This rule, as applied to an island, is correctly stated by 4 Tiffany, Real Property (3rd ed.), Sec. 1228 as follows:

“In the case of an island, the same rule applies as in the case of land bounded by water on one side only, that is, the boundaries áre presumed to vary with any gradual change in the line between the land and the water or, as it is otherwise expressed, the owner of an island is entitled to land added thereto by accretion to the same extent as the owner of land on the bank or shore of the mainland. Accordingly, since title may be acquired by prescription to an island which otherwise would belong to a riparian owner, accretions to such an island belong to the prescriptive owner and not to the riparian owner. In case accretions to the island cmd to the mainland eventually meet, the owner of each, it is said, owns the accretions to the line of contact, or, as we would prefer to express it, the boundary of an islcmd, as that of the mainland, changes as its edge or shore line changes, amd when there is no longer any island, owing to the growth of the accretions, he to whom the island belonged owns to where its edge or shore line was last visible.” (Italics supplied.)

Citing Naylor v. Cox, 114 Mo. 232, 21 S.W. 589; Holman v. Hodges, 112 Iowa 714, 84 N.W. 950, 58 L.R.A. 673, 84 Am.St.Rep. 367; Cooley v. Golden, 117 Mo. 33, 23 S.W. 100, 21 L.R.A. 300; and Fowler v. Wood, 73 Kan. 511, 85 P. 763, 6 L.R.A., N.S., 162, 117 Am.St.Rep. 534.

Where an island arises in a navigable river apart from riparian owners’ land, as in the case at bar, such owners cannot claim title thereto by reason of their riparian rights, though the island is after-wards joined to their land, since it did not become part thereof by gradual accretion to or reliction from the shore. Holman v. Hodges, supra; Hahn v. Dawson, 134 Mo. 581, 36 S.W. 233; Crandall v. Smith, 134 Mo. 633, 36 S.W. 612; Buse v. Russell, 86 Mo. 209, 214. It is upon this principle that many of the cases cited by counsel for defendants do not sustain their position in the case at bar. Typical of these cases are Allard v. Curran, 41 S.D. 73, 168 N.W. 761; Yearsley v. Gipple, 104 Neb. 88, 175 N.W. 641, 8 A.L.R. 636; Dailey v. Ryan, 71 S.D. 58, 21 N.W.2d 61. See also 8 A.L.R. 640, 41 A.L.R. 395. These are cases where the Missouri River washed away all, of a tract that was riparian to the river and for some 'distance into a more remote tract and thereafter the river receded and by gradual accretion to or reliction from the mainland restored all of both tracts. This situation must be distinguished from the case at bar where the accretions and. relictions claimed by the plaintiffs accrued to the island and not to the mainland.

The rule is succinctly expressed in 65 C.J.S., Navigable Waters, § 82, subd. f, as follows:

“The owner of an island is entitled to land added thereto by accretion to the same extent as the owner of land on the shore of the mainland.. If the accretion commences with the shore of the island and afterward extends to the mainland, or any distance short thereof, all the accretion belongs to the owner of the island; but, if accretions to the island and to the mainland eventually meet, the owner of each owns the accretions to the line of contact.”

See also 56 Am.Jur., Waters, Secs. 489 and 505, and 65 C.J.S., Navigable Waters, § 82, subd. d(2), and 45 C.J., Navigable Waters, p. 527, n. 55.

In Waldner v. Blachnik, 65 S.D. 449, 274 N.W. 837, 839, the basis of the claim of the plaintiffs to the land in controversy rested upon an asserted right to accretions forming from a sand bar which appeared over the place where the western extremity of an island had been before it was washed away. As the river moved away from the mainland on the north bank accretions were formed causing the new island and the mainland to meet. The defendant claimed title to the accretions in front of his land by reason of ownership of the riparian mainland. The court, in rejecting the defendants’ contention, stated:

“The fact that accretions to the island and to the mainland eventually meet affords no reason for varying the ordinary rule that accretions belong to the land upon which their formation . begins and from which -it extends. The line of contact becomes the boundary line between the respective riparian owners.”

Judgment for plaintiffs was reversed, however, upon the ground that plaintiffs had failed to establish the boundary or line of contact between the accretions to the island or sand bar and the mainland.

In the case at bar the evidence is examined and it is held that the plaintiffs, by competent survey made in the year 1950, have established for all practical purposes the boundary of Bourgois Island and the line of contact — the medial line of the watercourse in the east channel — between it and the mainland. We hold, therefore, under the applicable statutory provisions and established rules governing riparian rights, that the plaintiffs have perfected title to Bourgois Island as surveyed and platted.

The plaintiffs having established title to the island and accretions thereto, it is not necessary to consider the contentions of the plaintiffs with respect to other issues. The judgment of the district court is reversed with directions to enter judgment in favor of the plaintiffs for the relief demanded in their complaint.

BURKE, C. J., MORRIS and GRIM-SON, JJ., and JOHN SAD, District Judge, concur.

SATHRE and JOHNSON, JJ., deeming themselves disqualified did not participate, EUGENE A. BURDICK and JOHN SAD, District Judges, sitting in their stead.

On Petition for Rehearing

EUGENE A. BURDICK, District Judge.

The respondents have filed a petition for rehearing in which they suggest that the court has overlooked a controlling statute, Section 47-0610 NDRC 1943 which reads as follows:

“If a stream, navigable or not navigable, in forming itself a new arm divides itself and surrounds land belonging to the owner of the shore and thereby forms an island, the island belongs to such owner.”

This statute contemplates a situation where a stream in high water, whether suddenly by avulsion, perhaps induced by an ice gorge in its channel, or gradually by intermittent action at flood stage, cuts a new or auxiliary channel around a portion of the mainland and leaves such portion intact as an island and as a recognizable segment of the mainland from which it was severed. It has no application to the situation in the case at bar where the stream, moving by gradual and imperceptible degrees, eroded and utterly destroyed the mainland in the area in controversy, leaving no part of it intact and identifiable above low-water mark. See Payne v. Hall, 192 Iowa 780, 185 N.W. 912.

We adhere to our former opinion.

BURKE, C. J., GRIMSON and MORRIS, JJ., and JOHN SAD, District Judge, concur.

SATHRE and JOHNSON, JJ., did not participate.


source: Caselaw Access Project

author: SATHRE, Judge.

license: Public Domain

text:
    Paul BROSTE, Plaintiff and Appellant, v. FARMERS UNION CO-OPERATIVE ELEVATOR COMPANY of Parshall, North Dakota and F. W. Ahlgren, Defendants and Respondents.
    No. 7450.
    Supreme Court of North Dakota.
    June 6, 1955.

      Waldron & Kenner, Minqt,' for' appellant.
    E. J. Mcllraith, Minot, and Gary L. Lerberg, Parshall, for respondents.
   SATHRE, Judge.

The original complaint alleges that on or about July 27, 1950, the .plaintiff agreed to sell to the defendants 3550 bushels of wheat at $2.20 per bushel, and that the wheat was to be delivered within thirty days; that the defendants refused to' accept delivery of the wheat within said time or at ány time; that meanwhile the market went down and the plaintiff was compelled to sell his wheat at a substantial loss, for which he demanded damages from the defendants.

The defendants answered by general denial, and specifically denied that they agreed to buy said wheat.

At the opening of the trial the plaintiff moved to amend his complaint by adding thereto an allegation that in May 1952 the defendants acknowledged their obligation to the plaintiff and that a compromise settlement was entered into by which the defendants agreed to pay to the plaintiff the sum of $852.00 and that the plaintiff agreed to accept the same in full settlement of his claim.

The defendants answered by general denial specifically denying that any compromise settlement was ever agreed upon and demanded judgment for dismissal of plaintiff’s cause of action. The plaintiff was required to make an election upon which cause of action he desired to proceed, and he elected to stand on the cause of action alleged in his amended complaint.

The case was tried in the district court of Mountrail County before the court and a jury.

The defendant F. W. Ahlgren, manager of the elevator of the defendant was called for .cross-examination under the statute and he testified in substance as follows:

He was manager of the elevator of the defendant Farmers Union Cooperative Elevator Co. at the time of- the alleged sale claimed to have been made by- the plaintiff; that on or about July 27, 1950 the plaintiff came to the elevator and stated that he had a bin of wheat of between -3000 and- 4000 bushels that he would like to sell - and deliver before harvest and inquired what the market price was and -how much he would be allowed for- the protein content; that he advised plaintiff that if he bought the wheat he would want delivery before harvest; that he had no empty space at that time; that the market price at that time was $2.18 and an additional two cents would be allowed for protein content. Fie stated that he did not agree to buy the wheat, and that in all cases where wheat was purchased for future delivery a written notation was made thereof and it was the general practice to hedge against all'such purchases; that no written notation or memoranda y^as ever máde of a sale by the plaintiff.

Rodney Tompers an employee of the defendant elevator company, testifying for the. defendants stated he did not hear the conversation between plaintiff and Ahlgren on July 27, but that the plaintiff came to the elevator the following day and made inquiry about the market; that Tompers told him the market was down a few cents; that he then asked the plaintiff:

“Paul, .why don’t you contract your wheat? and Paul said T contracted it yesterday’. So I walked over to the files that we have there and where we have the record .of the contracts that ■are made. I .looked up there for the paper, and when I did not find Paul Broste’s name, so then I asked him: ‘Paul, are you sure that you made a contract; and he said yes, and I said Paul, I don’t see your name on this, so I think you probably better see Freddie (Ahlgren) and that was our conversation that day.’ ”

Lester Lorvig, a contractor who happened to be in the elevator office on July 27, 1950 when the plaintiff and Ahlgren were there, stated that he heard the plaintiff inquire about the market and that he had a bin of between 3000 and 4000 bushels of wheat that he would like to move before harvest, but that he heard nothing about a contract of sale.

The plaintiff Paul Broste, testifying in his own behalf stated that he came to defendant’s elevator July 27, 1950; that he talked with the manager Ahlgren and told him that he had a bin of between 3000 and 4000 bushels of wheat he would like to sell before harvest so as to make room for the new crop. He inquired about the market and was informed that the price of wheat that day was $2.18 and that he would be allowed two cents extra for the protein content. We quote from his testimony:

“Q. And what discussion did you have with him relative to the wheat on that day? A. Well, he asked me what the protein test was and I told him it was Í4.8, I believe it was, and he went and looked at the card and he said ‘that should be worth three cents over market, but I can’t give you more than two cents over the market.’ I said, ‘It’s marked on the board now $2.18, you mean you are giving me $2.20?’ and he said, ‘Well, yes’ and I said, ‘Well, I want to sell that because I want to get the bin empty for the new crop.’
“Q. What else was said? A. Well, there probably was some conversation there that I couldn’t just word, but I asked him if he could take that wheat now, and he said ‘Not just no'w’ and I said, ‘Well, I am not exactly in a hurry, only I want to haul it in before harvest.’ Ahlgren answered, ‘I want the wheat before harvest.’ ”

He testified further that he came to the elevator the next day and talked with Tompers, an employee, and inquired about when he could start hauling in his wheat and was informed there was no room as yet. Later in the season he talked with the manager Ahlgren and we quote further from his testimony:

“I asked Freddie if I could start to haul in my wheat.
“Q. What did he say? A. He said, ‘Did you want that in a special bin?’ and I said ‘It didn’t make any .difference to me.’ I said, ‘You bought the wheat, it’s your wheat, don’t make any difference to me whether you put it in a special bin or not.’ and he said, ‘I wouldn’t buy that wheat.’
“Q. He said what? A. ‘I didn’t buy that wheat.’.
“Q. Was there any more conversation that day? A. Well, we talked a little there, not very much.
“Q. What more was said, if you remember any of it? A. Well, he did say something about that I wasn’t specific enough.
“Q. He did say something about that? A. Yah.”

He testified that he had three meetings thereafter with the board of directors of the elevator company and that the manager Ahlgren was present at these meetings. These meetings were held on the following dates: September 14, 1950, July T 6, 1951 and May 20, 1952. Plaintiff’s testimony was not clear as to what occurred at these meetings. At the first meeting he said he told the directors that “he should have the right to haul that wheat .in” but, “well there was no answer to my request at all.” Referring to the statement of the board he said, “I would say it was more or less ignoring the point.”

' He testified also that at the first meeting he had presented to the board a written complaint. This written complaint is entitled, “The Complaint to the Directors of the Parshall Farmers Union Co-operative Elevator Co.”, and was introduced in evidence as defendants exhibit “A”. This is a lengthy document covering approximately 5 pages of the transcript. In the opening of this complaint he states that he believes in our cooperative system and the cooperative elevator but still our cooperative elevator does not get one single bushel of my 1949 crop, excepting the, screening of the seed cleaned there. He then goes on to explain the reason. He. .stated that he figured on giving this crop to the “Co-op”, that is most of it, hut he realized that the independent elevator was getting it all when he had only one bin left so, he thought he would let the “Co-op” have that anyway and went into the “Co-op” and sold it. We quote from his complaint:

“But the market went down and the manager then claimed I did not s.ell it using the argument that I was not specific enough. (Now I want to explain this deal. I see nothing wrong or vague on my part. The manager ’had previously told if I got a certified protein test he would bid ■ on it. We had procured that protein‘test (14.80) and now when I wanted to sell I asked how much he would give me for that protein wheat. He said 2‡ over market. The market was then marked on the board $2.18 and I asked him if he was. giving me $2.20 and he said yes. I told him I wanted to sell it and I told him why I wanted to sell it so my selling was emphasized by the reason for selling. The reason given for selling was to get my bin empty for harvest. I'told him how many bushels I figured there would be in the bin. We talked about when I could haul it in. He said he did not have much room just then. I said I was not exactly in a hurry to haul it in but I wanted it in before harvest. The manager answered he wanted it before harvest.
“I had said about all I could say in order to make a sale; I could not say any more, • and if there was anything left to make that a deal it was the manager’s part to co-operate and corroborate. The deal was specific enough from my part and if there was anything missing it was the co-operation and corroboration from the manager!
“It takes two to make a contract and a certain amount of co-operation between the two. If one party don’t cooperate it is hard to make a contract. I received spite work rather than cooperation at this'elevator'when I come in to sell, especially if the market is up and that is when I am in the elevator to sell. ,The manager seems to figure I should haul my grain in first and then sell it. I don’t' think I have done that for twenty years. I have my own storage facilities and I want to know what I • am going' to get for the grain before I haul it in.
“Why should I not be able to sell anytime I want to, anytime the market is up without having it in , the elevator”.

The complaint proceeds to refer to other and previous sales or attempted sales to the elevator company under the manager Ahl-gren all of which he claimed proved unsatisfactory.

Edward Avery secretary and a director of the Farmers Co-operative Elevator Co. was called by the plaintiff for cross examination under the statute.

He stated that he was present at the first meeting had in September 1950 at which time Paul Broste was present and made his complaint. He read from the minutes:

“Paul Broste was present and presented a complaint to the Board of Directors as to the manager failing to contract his grain. Motion made by Roberts and seconded by Avery that all ‘ grain contracts be in writing and signed by the customer and manager. Motion carried.”

He read next from the minutes of the second meeting held July 16, 1951, at which Paul Broste was present, as follows:,

“Special meeting of the Board of Directors of the Parshall Farmers Union Co-operative Elevator was held in the elevator office on July 16, 1951 at 8:00 P.M. Members present were A. C. Torgerson, Albert Moerke, Axel Olson, Ernest Roberts, Waide Williamson, Ed Avery and Éd May.”
“Motion was made and seconded that we pay no cash dividends this year. Motion carried. Paul Broste attended the meeting with a Complaint to the Board of Directors and after lengthy discussion with Mr. Broste the meeting adjourned.”

He read further from the meeting of the Board of Directors held May 20, 1952 at which meeting the plaintiff Paul Broste was present.

“The meeting of the Board of Directors of the Parshall Farmers Union Co-operative Elevator was held in the office on May 20th, at 8:00 P.M. Members present were A. C. Torgerson, Waide Williamson, Ernest Roberts, George Rysen, Ed Avery and Ed May. The meeting was called to order by the President, A. C. Torgerson. Minutes of the last meeting read and approved as read. Paul Broste appeared in regard to wheat that he says to have contracted, that he stated that he lost twenty-four cents a bushel on 3,550 bushels. Motion made by Roberts and seconded by Hoffman that we continue to hedge grain as usual. Motion carried. Motion . made by Roberts and ■ seconded by May that we take out insurance of $3,000.00 on Joy Kline and Rodney Tompers. Meeting adjourned.”

Mr. Ahlgren, the manager was present at the three meetings of the directors of the elevator company to which we have referred. At the meeting held 'On Jtily 20, 1952 he told the plaintiff - Paul- Broste that he would pay him the sum of $852.00 in settlement of his claim. He testified as follows:

“Q. Now, at this third meeting, tell us what you said to Paul and what he said to you. A. Well, the discussion • between Paul and the Board had gotten pretty deep and it was getting to the point where it was hard to understand just what Paul wanted. I know the Board questioned it if he — they asked him, I know members of the Board asked him, ‘Is it money you want or do you want the manager canned or what do you want ?’ and so when I asked him, I said Tf I pay you this $852.00 out of my pocket, will you forget the whole thing and not say anymore about it?’ he said he would. So then I told him I couldn’t pay him in cash, but I told him I would pay him at the rate of $50.00 a month. He said he wouldn’t take that, so I said he would have to give me a couple of days to raise the money.
“Q. And were you able to raise the money? A. Yes, I was.
« * * * * * *
"Q. Now, then, after the meeting was over, then what did you do about this matter,' if anything? Did you raise some money? A. Yes.
“Q. How much did you raise? A. I raised the $852.00.”

The plaintiff prepared a form of release and presented it to Ahlgren, but Ahlgren refused to accept it. He then prepared his own release and with reference thereto he testified as follows:

“Q. And then where did you take it, if you took it anywhere?- A. I took it back with me down to the elevator.
“Q. And did you see Paul later about it? A. Yes, he came in then— he came in the elevator then.
“Q. About when? A. Oh, quite soon after that, within a few days, anyhow.
“Q. And did you present that release to him? A. Yes, I presented the check and the release to him both at the same time.
“Q. You presented what? A. The check.
“Q. A check for what? A. For the $852.00.
“Q. Well, what happened at that time?
“Q. (By Mcllraith) No, when Paul came in now, what did you do with that form of release? A. The first time Paul came in, then I showed it to him.
“Q. Yes. A. That’s right, and I had the check issued; that’s right, and he looked at it and said that he couldn’t sign it unless he had- it checked by his attorney.
“Q. Couldn’t sign it unless he had it checked by his attorney? A.. Yes.
• “Q. What happened the next time you and Paul met? A. Then he wouldn’t sign it. He said he wanted me to sign his, or wanted me to take his release that he had.
“Q. Sign his release? A. No, he wanted me to take his release that he had signed.
“Q. And you wanted him to take yours? A. Yes.
“Q. Now, what was done after that, if anything? What was said between the two of you? A, When he found out that I wouldn’t take his, why then I guess he got kind of mad at me and took off, and so I voided the check.
“Q. You what? A. I voided the check, and then he did come back later and said he would sign it if I crossed out a couple of those words.
“Q. And what did you say then? A. I refused to do it.
“Q. You refused to do it? A. Yes.
“Q." And has anything further occurred between you and Paul about this matter? A. No.
“Q. That’s the way it stands today? A. (Nods in the affirmative)”

Mr. A. C. Torgerson was called by plaintiff Broste for cross examination under the statute on the theory that he was a director of the defendant Farmers Union Elevator Company. Defendants objected on the grounds that Torgerson was no longer a director and had not been a director since July 1952, which objection was sustained. Torgerson was then called as a witness for the plaintiff. He testified that after the meeting of May 20, 1952 the plaintiff Broste came to Torgerson’s farm and asked him to take a form of release to the defendant Ahlgren. The release was not signed by Broste at that time. After discussing it with Torgerson two or three words were stricken after which the release was signed by the plaintiff Broste. The next day Tor-gerson took the release with him to the elevator but he did not show it to Ahlgren. He asked Ahlgren why he had not paid Broste and Ahlgren said he would not pay Broste because he would not sign the release in the form it was originally drawn by Ahlgren and that thereafter he returned the release to the plaintiff Broste.

At the close of the testimony when both parties had rested counsel for defendants made a motion for a dismissal of the action upon the grounds that the plaintiff had wholly failed to establish any liability on the part of the defendants. The trial judge denied the motion, but stated that if the jury found a verdict1 for the plaintiff he would have 'to set it aside as to the defendants Farmers Union Co-operative Elevator Company. Counsel then moved for dismissal of the' action against the elevator company which motion was granted. The question of the liability of the defendant Ahlgren was submitted to the jury and the jury returned a verdict for dismissal of the action. The plaintiff made a motion for judgment notwithstanding the verdict which was denied. The plaintiff appealed.

Plaintiff’s specifications of error include:

1. Numerous exceptions to the rulings of the trial court on admission or exclusion of certain testimony.
2. The refusal of the trial'Court to allow cross-examination under the statute of the witness Torgerson.
3. Refusal of the trial court to give the following requested instructions to the jury.
“Members of the jury, you are charged that if you should find from the evidence in this case that Mr. Ahlgren offered to,.pay-Mr. Broste the sum of . $852.00 for settlement of a, disputed claim, and that this offer was at that time accepted by Mr.. Broste, and that this settlement agreement was to be reduced, to writing, but was in fact never reduced to writing; then, nevertheless, you should return a verdict in favor of the plaintiff and against the defendant, Mr. Ahlgren, for such amount as he orally promised to pay.”
4. Error in dismissing the action against Farmers Union Cooperative Elevator Company.
5. The court erred in denying plaintiff’s motion for judgment notwithstanding the verdict.
6. The court erred in denying plaintiff’s motion for a directed verdict against the defendant Ahlgren, which motion was renewed and denied at the close of the defendant’s testimony.
7. .Error in permitting defendants’ counsel’to argue prejudicial matters to 'the jury picturing plaintiff as a malevolent and slanderous individual.

With reference to specification grouped under No. 1 above we have carefully reviewed the many objections made and exceptions taken by the plaintiff to the rulings of the. trial court. When considered in their context and in the light of the entire record we are of the opinion that they are without merit. To review them in detail here would make this opinion unduly lengthy and would s.erve no good purpose. We are satisfied that the rulings of the trial court are correct.

The next specification for consideration is the refusal of the trial court to permit cross examination under the statute of the witness Torgerson. This witness was a director of the elevator company at the time of the alleged sale of wheat by the plaintiff to the defendants and he was president of the board of directors when the plaintiff appeared at the meetings held September 1950, July 1951 and May 1952, but he ceased to be a director in July 1952. This action was tried in November 1953, more than a year after Torgerson ceased to be a director. This court has held that the right to -cross examine a witness under the statute must be determined as of the time of the trial. Jacobson v. National Tea Co., 51 N.D. 889, 200 N.W. 910. We quote from paragraph 1, of the Syllabus:

“The right to cross-examine the managing agent of an adverse party at the trial, under sections 7863 and 7870 C.L. 1913 (now Section 31-0202' NDRC 1943), must be determined as of the time of tlie trial. The fact that the witness was such manager or managing agent at the time the negotiations were had, out of which the cause of action arose, is not controlling, and where the witness at the time of the trial has not been connected in any capacity with the defendant, as manager or otherwise, for a period of nearly two years prior thereto, it is error to permit such cross-examination over objection.”

As to the refusal of the trial court to give the requested instruction we think the import thereof was covered in other portions of the court’s charge to the jury. In its general instruction the court said:

“Where the terms of a proposed contract are fully understood and there is mutual assent thereof, a completed contract results though it is also agreed that the terms shall be reduced to writing and signed, unless it is expressly or impliedly stipulated that until the writing is executed the parties are not to be bound.”
* * * * * #
“If you should find by a fair preponderance of the evidence under these instructions that a contract or agreement of compromise and settlement of a disputed claim was entered into between the plaintiff and defendant Ahl-gren, then the measure of damages would be the amount of money which ' the defendant agreed to pay in the undisputed sum of $852.00.”

, The proposition involved in the requested instructions was therefore substantially given in the quoted portions of the general instructions.

The next specification for our consideration is whether the trial court erred in dismissing the action as to Farmers Union Cooperative Elevator Co. The question presented is therefore whether there is sufficient evidence in the record from which the jury could find that the elevator company had in fact purchased plaintiff’s grain as alleged in his complaint.

We have carefully examined the facts and circumstances disclosed by the record but we do not deem it necessary to set out the evidence in detail. We are satisfied that the evidence is not sufficient to present a question of fact for submission to the jury as to whether the Farmers Union Cooperative Elevator Company had agreed to buy from the plaintiff the grain involved in this action. There was no acknowledgment of any liability to the plaintiff by the directors at any of the meetings at which the plaintiff was present. The minutes of the meetings show that the plaintiff complained that the manager failed to contract his grain. The minutes further show that motions were carried at these meetings to “continue to hedge grain as usual and that all grain contracts be in writing and signed by the customer and manager”. In the instant case no grain was hedged nor was there any contract in writing signed by the plaintiff and the manager. Upon the record it was not error on the part of the trial court to dismiss the action as against the elevator company.

With reference to plaintiff’s claim against Ahlgren the testimony of the parties shows that Ahlgren personally offered to pay the plaintiff $852.00 if he, the plaintiff, would “forget the whole thing and not say anymore about it”. The testimony further shows that Ahlgren told the plaintiff that there would have to be a release. Accordingly the plaintiff had one prepared by his attorney and presented it to Ahlgren. After showing the release to attorney Lerberg, Ahlgren refused to accept it. He then had a release prepared and submitted it to the plaintiff, and offered him a check in the-sum of $852.00 upon receipt of the release-signed by the plaintiff. Plaintiff refused to-sign the release, but took it with him, and thereafter made some changes by striking out certain words therein. He then handed the release in its altered form to Mr. Tor-gerson, but Torgerson did not show it to-Ahlgren. The check was voided by Ahlgren after the plaintiff refused to sign the release. This release was introduced in evidence as-plaintiff’s exhibit 1, and is as follows:

“In consideration of the payment of Eight Hundred Fifty-two Dollars, I hereby release the Farmers Union Elevator Association of Parshall, North Dakota, and F. W. Ahlgren, manager, from any liability in connection with a future sale of grain purportedly contracted in the year 1950. I- further agree to cease and desist from any further agitation, litigation, and publication of said matter.
“It is hereby understood by me that this payment is not an acknowledgment of liability on the part of the elevator or its manager but is made to stop any further controversy on the subject and for a release of possible liability in the matter.”

The plaintiff did not attempt to hold Ahlgren to the oral offer of payment. Instead he prepared and submitted to Ahl-gren a written and signed release. Ahlgren did not accept it and prepared his own release which was not acceptable to Broste. Clearly it was contemplated by both parties that a written release was to be executed by Broste before payment of the $852.00 was to be made by Ahlgren. Since they could not agree on the form of the written release there is a serious doubt whether a valid agreement between them was consummated and the trial court properly submitted that question to the jury under the following instructions.

“I charge you, however, that the issue to be determined by you from all of the evidence in this case and under these instructions is whether Defendant Ahlgren agreed to pay the sum of $852.-00 as a release in full compromise and settlement of the disputed claim of the plaintiff. In.this connection, I charge you that you may not consider whether a contract of sale or sale of grain was actually effected or accomplished, as that question was the question in dispute which was alleged to have been resolved by the alleged contract or agreement of settlement.”

The jury returned a verdict for dismissal of the action. The plaintiff made a motion for judgment against- Ahlgren notwithstanding the verdict which, was denied by the trial court. We think that under the evidence the jury was warranted in rendering a verdict for dismissal of the action.- The motion for judgment notwithstanding the verdict was therefore properly denied.

In specification No. 7, plaintiff contends that the argument of defendants' counsel to the jury was prejudicial and held plaintiff up as a malevolent and slanderous individual. However, the language alleged to have been used by counsel has not been pointed, out or shown in the record. Where a party predicates error on an attorney’s argument to the. jury he must present a record affirmatively showing the objectionable language used. Erickson v. Wiper, 33 N.D. 193, 157 N.W. 592; Hurley v. Chicago Milwaukee & St. Paul Ry. Co. 48 N.D. 1251, 189 N.W. 322.

The foregoing disposes of the specifications. of error assigned by the appellant. After a careful review of the entire record we conclude that the judgment should be affirmed, and it is so ordered.

BURKE, C. J., and MORRIS, GRIM-SON and JOHNSON, JJ., concur.


author: PER CURIAM.

text:
    Olav HELLER, Plaintiff and Respondent, v. C. TORGERSON and W. C. Sveen, Sheriff of Williams County, North Dakota, Defendants, and C. Torgerson, Defendant and Appellant.
    No. 7422.
    Supreme Court of North Dakota.
    June 30, 1955.
    Duffy & Haugland, Devils Lake, for defendants and appellant.
    Walter Q. Burk, Williston, for plaintiff and respondent.
   PER CURIAM.

In October 1937, L. R. Baird as Receiver of the Williams County State Bank, an insolvent banking corporation, obtained a money judgment against the plaintiff. In April, 1945, he assigned this judgment by a written instrument to the defendant Tor-gerson. Plaintiff brought this action to set aside the assignment upon the ground that it was wholly void. The trial court found for plaintiff and directed the entry of a judgment setting aside the assignment. The defendant, Torgerson, has appealed from the judgment and demanded a trial de novo in this court.

Since the receiver’s judgment against the plaintiff is conceded to be a valid judgment, his only interest in the assignment arises out of his right to be certain that satisfaction or enforcement of the judgment by the assignee would extinguish the judgment and his liability thereunder.

L. R. Baird was discharged as receiver and the receivership of the bank was terminated on December 13, .1945. Section 6-0738, NDRC 1943, provides in part:

“* '* * upon the winding up of the receivership proceedings, [the State Examiner] and shall be vested with title to 'any assets belonging to such bank' and not distributed in such receivership, * *

It is clear therefore, that if the assignment of the receiver’s judgment was' void, title thereto became vested in the State Examiner upon the termination of the receivership.

Section 6-0738, supra, also provides that the State Examiner

“ * * * shall have authority to execute all deeds, satisfactions, assignments, or other documents required for the purpose of * * * correcting public records and quieting title to property in which the insolvent bank has or has had an apparent interest.”

It thus appears that the State Examiner has been given the power, to be exercised at his discretion, to execute any documents that may be necessary to validate any irregular or void transfers or assignments that may have been made in the course of a receivership of an insolvent bank.

In this case, and prior to the trial thereof, John A. Graham, the State Examiner, filed a disclaimer of all interest in the judgment assigned by the receiver to the defendant, Torgerson. Under the provisions of Section 6-0738, supra, he had the power to make such a disclaimer. It was binding upon him and his successors in office. The filing of this disclaimer therefore made legally certain that the satisfaction or enforcement of the judgment by the assignee, the defendant, Torgerson, would extinguish the judgment and plaintiff’s liability thereunder. Its effect was to extinguish plaintiff’s litigable interest in this law suit. Upon -the filing of the State Examiner’s disclaimer, this action became moot and it should have been dismissed. See Bank of Blowing Rock v. McIver, 217 N.C. 623, 9 S.E.2d 25.

The judgment of the District Court is therefore reversed and the action ordered dismissed.

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

JOHNSON, J., did not participate.


text:
    Edgar HERMAN and Tony B. Herman, on their own behalf and as residents and taxpayers of Medicine Lodge School District No. 8 of the County of McHenry and State of North Dakota, and on Behalf of Other Residents and Taxpayers Similarly Situated, Plaintiffs and Respondents, v. MEDICINE LODGE SCHOOL DISTRICT NO. 8, COUNTY OF McHENRY, State of North Dakota, a Public Corporation, and Cecil Herman, Kyle Miller and Carl Ross Green, Directors of said Medicine Lodge School District No. 8, Betty Fairbrother, Clerk of said School District, and David Fairbrother, Treasurer of said School District, Defendants and Appellants.
    No. 7456.
    Supreme Court of North Dakota.
    June 24, 1955.

      Joseph C. Mclntee, Towner, Bosard & McCutcheon, Minot, for defendants and appellants.
    Heringer & McClintock, Rugby, for plaintiffs and respondents.
   SATHRE, Judge.

The plaintiffs, residents, and taxpayers of Medicine Lodge School District in Mc-Henry County, North Dakota.brought this action for themselves and other residents and taxpayers similarly situated, against said school district, the directors, clerk and treasurer thereof, defendants, to restrain them from closing the schools in said school district and from transporting the children of compulsory school age to Newport School District in the city of Towner, North Dakota.

Medicine Lodge School District is a common school district consisting of thirty-six sections, and is coextensive with Wager township in McHenry County, North’Dakota.

The facts are stipulated and briefly stated are as follows:

In the fall of 1953 there were in the defendant' school district 22 children of school age, sixteen of whom were of compulsory school age. The school district did- not open any of the schools in the district but instead made arrangements to have all children of school age in the district trails-, ported to Newport School District in the City of Towner, some eight or- nine miles away where arrangements had been made to receive such children. The defendant district had on hand in the treasury some $8,400 unencumbered and subject to use for operating expenses of the district. The board -proceeded to advertise for bids for a bus and a bid of some $4,000 was accepted. The successful bidder agreed to furnish a bus without charge to be used until the new bus could be furnished. The school board also advertised for a bus driver qualified as required by law, and the application of a driver was accepted and it was agreed that his compensation was to be $125 per month.

Thereafter certain school patrons who objected to the arrangements made by the school board, brought an action in mandamus to compel the board to open school number 1, in the vicinity of which there were more than the minimum number of children of school age. A writ was granted by one of the District Judges, and school number 1 was opened, a teacher was hired and more than the minimum number of pupils attended said school. However the school board continued the arrangements with Newport School District and continued to transport to said district the remaining ten children of school age.

It is agreed by both parties that the school facilities offered and maintained in Newport School District are superior to those maintained in school number 1, in the defendant school district; that the route traveled by the school bus each way is 14 miles; that there are several schools open, and operating in adjoining and adjacent school districts, and that -no. attempt was made by the school board to place any-of the pupils in the schools of said adjacent or adjoining school districts.

Under the arrangements made with Newport School District; Medicine Lodge School District agreed to pay tuition for all children attending the Newport Special District School, and also to pay to Newport School District the ■ sum of $70 per year for each pupil in attendance from Medicine Lodge District from the county tuition fund; and Medicine'Lodge District further arranged to pay Newport District the sum of $1,200 -which Medicine School District was entitled to receive from the State Equalization Fund by reason of having closed one school within the district; and Newport School District agreed to receive in its school all children of school age from said Medicine Lodge School District.

It is also stipulated that all but three of the 22 children of school age in Medicine Lodge School District reside within a radius of from 2 miles to 2½ miles from school number 1, in said Medicine Lodge District.

The plaintiffs allege in their complaint that the action of the defendants in advertising for and purchasing a school bus, advertising for and hiring a bus driver, and in making arrangements with Newport School District to "receive the pupils from Medicine Lodge School District was illegal, and without authority of law, and that if the defendants are permitted to continue the said arrangements it will be necessary to increase the taxes of the plaintiffs and other taxpayers within said school district similarly situated. Demand is then made for judgment declaring all of the acts of the defendants illegal and void, and for an order enjoining and restraining the defendants from issuing warrants against the funds of said school district in payment of salaries of a bus driver, and purchase of a bus, tuition or any other expenditure in connection with the arrangements with Newport School District in the matter of receiving the pupils from the defendant school district.

Two of the directors answered denying generally the allegations of the complaint; alleging that they had full legal right and authority to carry out the arrangements made with Newport School District, and that such arrangements would be for the best interest of Medicine School District and the children therein of school age.

The defendant Cecil Herman one of the directors of Medicine Lodge District interposed a separate answer disclaiming any participation in the arrangements made by the other two directors; that he was opposed to the purchase of a school bus, the hiring of a bus driver, and transportation of pupils of Medicine Lodge District to Newport District. He demands judgment for dismissal of the complaint insofar as it applies to him.

The case was tried before the Honorable Albert Lundberg, one of the District Judges of the Second Judicial District, without a jury. Judgment was rendered in favor of the plaintiffs perpetually enjoining the defendants from carrying out any of the arrangements made for transferring the pupils from Medicine Lodge School District to Newport Special District. The defendants appealed to this court and demanded a trial de novo.

The question presented on this appeal is whether the defendant, a common school district, had the authority under the law, to purchase a school bus, hire a bus driver, furnish vehicular transportations for its pupils to Newport Special School District which is willing to receive such pupils, pay tuition, transfer and assign to the receiving district certain funds to which the defendant district is entitled from the county tuition fund by reason of having one school closed.

The first question for consideration is whether under the existing situation Medicine Lodge School District may lawfully close its schools and make arrangements to transport its pupils to another district and pay tuition and other expenses incident thereto.

The appellants contend that the school district is authorized by Section 15-2512, NDRC 1943 to make arrangements to send children, of school age to other districts, provide transportation and pay tuition to the receiving district. Said section reads as follows:

“When, on' account of shorter distances and other conveniences, it is to the best interests of a school district to send pupils into another school district, the district sending such pupils, with the approval of the county superintendent of schools, may pay the tuition of such pupils to the district to which they are sent. The board may arrange, and when petitioned to do so by a majority of electors of the district shall arrange, with the school boards of other districts to send to such other districts pupils who can be taught conveniently therein, and for the payment of their tuition and for furnishing and paying for their transportation to and from the schools in such other districts.”

The appellants stress the following language of the statute:

“When, on account of shorter distances and other conveniences, it is to the best interests of a school district to send pupils into another school district, the district sending such pupils, with the approval of the county superintendent of schools, may pay the tuition of such pupils to the district to which they are sent. * * * ”

They assert that the phrase: “to the best interests of the district” has reference to the best educational facilities and opportunities for the children rather than to the financial interests of the school district as a public corporation. They further contend that under said statute the-school board may make the necessary arrangements for sending children to another school district when in its judgment it is for the best interests of the district; and that when such arrangements are made the board is authorized to pay tuition for the children sent to another school district and to furnish and pay for their transportation to and from the school to which .they are sent.

The respondents contend that the defend-ant school district is prohibited by said section 15-2512 from carrying out the arrangements with Newport School District to receive its pupils. They argue that at least two of the three following conditions must exist in order to authorize the school board to make such arrangements.

(a) The school to which the children are sent must be a shorter distance from the home of the pupils than a school in their home district which is open; or

(b) There, must be some other convenience bearing some relation to the matter of'travel; and

(c) It must be for the best interests of the district.

It is contended that the third condition is constant and must combine with at least one of the other two conditions before the board would have the right to send children of compulsory school age to another district under the statute quoted. They assert that the rule of ejusdem generis applies here and that the phrase “other conveniences” must bear some relation to shorter distances of travel, and does not include any advantage or convenience other than shorter distances of travel to and from school.

Under Section 15-3404, 1953 Supp. ND RC 1943, the school board may not furnish transportation except to families residing more than two miles from a school. Under the arrangements made by the defendant school district a bus will be furnished which complies with all specifications for safety and comfort prescribed by statute. The defendants contend that it would be less hardship for children of tender years to ride fourteen miles in a comfortable bus morning and evening than to walk two miles twice each day during the winter months. Even if the rule ejusdem generis is applicable to. the situation, which we think is doubtful, the arrangements made by the board for bus transportation is a convenience which bears some relation to travel distances.

It is also contended by the respondents that the phrase “the best interests of a school district” has reference to the school district as a public corporation and has no reference to any educational benefits to the pupils; that the superior quality of instruction afforded by the Newport Special School District does not come within “other conveniences” and that the “child benefit” rule does not and cannot apply under section 15-2512. They claim that the school board may send pupils to other districts only when it is in the interest of the district as a public corporation regardless of benefit to the children. It is admitted by the plaintiffs that the “child benefit” rule prevails in many states but they assert that this rule cannot apply under the laws of this state.

The respondents seem to overlook the purpose for which a school district is organized. Under the provisions of our state constitution and laws enacted under its mandate, school districts are organized for the purpose of providing adequate educational facilities and opportunities for all children of school age.

An examination of' recent legislative enactments in this state relative to educational facilities shows a positive trend towards the “child benefit” rule, and that the legislature is aware of the inadequacy of the one-room school where, in many cases, there are twenty or more pupils with one teacher attempting in crowded conditions and under other disadvantages to give instructions in all primary grades. The legislative assembly of 1947 enacted the school redistricting law, NDRC 1953 Supp. 15-5301 et seq., which provides for reorganization of school districts, so as to include more territory, provide for transportation of pupils and other advantages for the school children of the state. The title and purpose of that statute is as follows :

“It shall have for its purpose the formation of new school districts and the- alteration of the boundaries of established school districts in order to provide a more nearly equalised educational opportunity for pupils of the cotmnon schools, a higher degree of uniformity of school tax rate among districts, and a wiser use of, public . funds expended for the support of common school system [s].” (Emphasis supplied.)

Other factors to be considered under said law are:

Conditions affecting the welfare of the teachers and pupils; equalization of . the eddcational opportunities, and other matters which are of importance in promoting better educational opportunities for the children of the state. '

The 1947 legislative assembly also enacted ■ a statute providing for a non-profit school lunch program, Chapter 15-54, 1953 Supp.NDRC ■ 1943. It provides that :

“ ‘School lunch program’ means a program under which lunches are served by any school in the state on a nonprofit basis to children in attendance, including any such program under which a school receives assistance out of funds appropriated by the Congress of the United States- * * *.
“The state educational agency shall establish a fund known as the North Dakota School Lunch Fund. All moneys received by the state educational agency, from the federal government or any other source, for the North Dakota school lunch program, shall be placed in such a fund. * * *
“ ‘State educational agency’ shall mean the state department of public instruction.”

These enactments certainly indicate a legislative intent to provide better school facilities and educational opportunities for rural school children of the state.

Respondents contend also that a school district can furnish transportation only to schools in the district, and they cite section 15-3412, NDRC 1943 which provides:

“The school board or board of education of any school district which furnishes vehicular transportation to any of its schools, prior to the opening of school each year, shall enter into written contracts for the furnishing of ' such transportation, for the- ensuing school year.”

We cannot agree that said section limits the board to furnishing transportation to schools within its district only. To so hold would indeed be a strained construction of the language of the statute. It provides that where the district furnishes transportation to any of its schools it shall enter into a contract for furnishing such transportation prior to the opening of the school each year. The statute does not prohibit the board from furnishing transportation in cases where the district has made arrangements to send its pupils to another district. Section 15-2512 under which the defendant district made arrangements to send its children to Newport Special School District specifically authorizes the board to “send pupils into another school district, * * * [and] arrange * *. * for the payment of ‘their tuition ' and * * * transportation.”

Under Section 15-2512 quoted herein, the school board, with the approval of the county superintendent' of schools, is authorized to determine the conditions under which children of school age may be sent to another district. It is admitted that the county superintendent approved the action of the board. Under the statute,, when such arrangements are made, the board is authorized to pay tuition and furnish and pay for transportation to and from the school district to which its pupils are sent.

Section 15-3418 NDRC 1943, 1953 Supp. authorizes school boards to purchase school * bus equipment. It provides as follows:

“School boards shall have the power to purchase a bus body, a chassis, or a complete motor bus. Such bus body, chassis, or complete' motor bus shall meet the standards set up by the superintendent of public instruction and the highway commissioner. School boards shall be required to advertise for bids in- accordance with the provisions of section 15-4715, of the North Dakota Revised Code of 1943. School boards may use money' in the- general fund to purchase a bus body, a chassis, or a complete motor, bus on the installment plan, provided that the payment of such plan shall 'not extend over a period greater than four years, and that the interest on the unpaid balances - shall not exceed four per cent. Such interest shall be straight interest on unpaid balances.”

Section 15-3419, 1953 Supp. NDRC 1943, authorizes, the board to employ a driver:

“The driver of a school bus shall be in good physical and' ineiital health, able-bodied, frée ''from communicable diseases, and shall have normal use of both hands, both feet, both eyes, both ears. It shall be the duty of school boards to' designate reputable physicians to examine each driver annually. It shall be-the duty of each driver.to present the .physician’s certificate of physical fitness to the employing school board before a .contract is signed. Such driver -shall possess a good moral character, and shall be at least eighteen and not more than sixty years of age and shall -be required to have a -North Dakota driver’s ..license. --.The .term school-bus'as-used in-this ^.pt (section) shall mean. a passenger motor vehicle having an actual -seating capacity of, twelve or more passengers.”

The language' of the statutes quoted is positive in form, and when the board in the exercise of legal discretion has found that proper conditions exist it may exercise the powers specifically granted.

As a general rule courts will not interfere with the ’ discretion of school boards in the performance of their duties except to - prevent an abuse of, it. McQuillin, Munic. Corp., 3d Edition, Public Education, Vol. 16, Section 46.07, page 580, states the rule thus:

“These boards are usually given. ex- • tensive discretionary powers in order - that they may the better assist in carry--; ing out the general school system adopted by the state and thus promote' the cause of public free education. They are generally empowered to make rules and regulations, subject, of course, to the laws of the state, for the government of the schools under their control; it being intended that they, should exercise their best. judgment for the highest good of the schools.; The courts will not interfere with the'exercise of this discretion except to prevent an abuse of it. Thus it logically follows', the rule usually prevails that the action of a board of education taken in the reasonable exercise, of its discretion in honesty. and good faith and without fraud or sinister motive is not subject to judicial review.”

And,in Vol. 78 C.J.S., Schools and School Districts, § 99, p. 849, it is stated:

“In the establishment, management, or the administration and supervision of schools, or ⅛ the exercise of the powers conferred on county boards of education, and similar boards, by statute, they are vested with a broad discretion, with the exercise of which the courts-will not ordinarily interfere except in the case of clear, gross, or' palpable abuse of discretion, clear violation of law, fraud, bad faith, or the transcending of the board’s legal authority. Such a board must not act-arbitrarily or unreasonably, and an exercise of honest judgment, although er-. roneous, is not an abuse of such discretion, and is not subject to review.
“There is no requirement that a board follow its past policy in matters within its discretion.”

The school laws of Kentucky provide that:,

“The county board of education may at. any time authorize and provide for the transfer of any child, children or grades in any subdistrict to the public school of another subdistrict if It is nearer or otherwise desirable.” Ky.St.. § 4426-1. , :

This statute was under consideration by the court of appeals of Kentucky-in the case of Brown v. Bailey, 238 Ky. 287, 37 S.W.2d 58. In disposing of the issues, the court said:

“It will be. observed that under the foregoing section the county board of education may at any time authorize and provide for the transfer of any child, children, or grades in any sub-district to the public school of .another subdistrict if it is nearer or otherwise desirable. The point is- made that the transfer can be ordered only when desirable, and that means desirable not to the teacher or the board of education, but desirable to the'parents and children. In our opinion the word ‘desirable’ is not used in- the sense of personal preference either on the part of the parents or the children, or the board of education, or the teacher. What is .meant is desirable in the sense of-being for. the best interests of the school and the pupils, and- whether or not a transfer is desirable from that standpoint is a matter to be determined by the board and not by the parents or children, who might never consent to the change, although not to do so would seriously impair the educational advantages of all concerned.”

In the case of Donie Ind. School District v. Freestone Consolidated Common School District, Tex.Civ.App., 127 S.W.2d 205, 206, a statute making provision for the transportation of pupils to and from any school upon which they might be in attendance was under consideration by the Texas Civil Court of Appeals. In the opinion it is stated:

“We think the issue involved herein is clearly shown to be1 one arising in the administration of the school affairs of said county. The general management and control of such affairs is vested in the county school trustees of each county. R.S. Art. 2676, Vernon’s Ann.Civ.St. art. 2676. Necessarily, under the general language used in said article, the county school trustees of each county are vested with a large discretion in the exercise'of the powers so conferred, and the coürts will not ordinarily interfere with their exercise of the same unless it is clearly shown that such discretion has been abused.”

In the case of School District No. 35 of Cass County v. Shinn, 64 N.D. 20, 250 N.W. 23, 24, this court had under consideration section 1179, C.L.1913, which contained provisions similar to, section 15-2512 relative to sending pupils from one district to another district. In that case we said:

“The board of the plaintiff school district had unquestioned power to arrange with the board of- education of Fargo and to send to the schools of Fargo such pupils as could not be conveniently taught in the plaintiff school district and to pay the board of education of Fargo for their tuition. * * *
“In exercising this latter power, the members of a district school board are vested . with large ■ discretion. They must determine when it is. necessary or desirable to arrange with another school district to furnish school facilities for children from within their district.”

Respondents cite McWithy v. Heart River School District, 75 N.D. 744, 32 N.W.2d 886; Seiler v. Gelbar, 54 N.D. 245, 209 N.W. 376; and State ex rel. Brand v. Mostad, 28 N.D. 244, 148 N.W. 831, as supporting their position herein. We have examined these cases and find that the facts therein are materially different from the facts in the instant case. In State ex rel. Brand v. Mostad. it was held that school boards have the right to exercise all reasonable discretion in furnishing the free transportation provided by law. In Seiler v. Gelbar it was held that in the discretion of the school board transportation may be furnished either by the use of public conveyances or by allowing to each family as compensation a sum of money dependent upon the distance to be traveled 'and the number in the family. McWithy v. Heart River School Dist. was an action brought by the teacher for saláry claimed to have been unlawfully withheld by the school board and has no application' to the facts in the case at bar.

Respondents concede, that the.trial court erred in holding that; the defendant district had .no authority to purchase the bus. We quote from page 30 of their brief:

“Secs. 15-3418 and 15-3419 when read as a part of Chap. 15-34, of which they are clearly a part, undoubtedly conferred on 'boards of directors of common school districts the discretionary power of providing vehicular transportation within the district, including authority to purchase a school bus and to employ a driver to operate it. To the extent that the judgment in this case permanently enjoins the purchase of the bus, we have reached the conclusion on further consideration of this matter that the judgment enjoining the purchase of the bus should be modified to permit its purchase and authority to, pay for.it.”

The right of the school board to purchase a bus is therefore not an issue in the case.

There remains for determination only the one question as to whether the appellant school district had the power under section 15-2512 to make arrangements to send its children of compulsory school' age to Newport Special School'District. There is no doubt that Newport District had the power to receive defendants’ pupils, — in fact, that is not an issue here.

We think that it is fully'established by the record, the applicable statutes and the authorities cited that the defendant school district had the authority to make arrangements to send the pupils in the district to Newport Special School District, pay tuition, provide for transportation by purchasing a bus and employing a driver. It seems clear that the arrangements made are to the best interest of- the pupils of the district since they are provided educational opportunities far superior to those afforded in the defendant district. There are sufficient moneys, in the general fund of the district,' unencumbered, which may legally be drawn upon for defraying the expenditures incident to carrying out the arrangements made with Newport Special School District. Accordingly we conclude that thé judgment of the district court should be reversed and the case remanded with-directions to-enter judgment in accordance with this opinion.

It is so ordered.

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