source: Caselaw Access Project

author: MORRIS, Chief Justice.

license: Public Domain

text:
    GRANDIN v. GARDINER et al.
    No. 7413.
    Supreme Court of North Dakota.
    Feb. 23, 1954.

      Q. R. Schulte, Stanley, for plaintiff and respondent.
    Zuger & Zuger and C. L. Foster, Bismarck, for defendants and appellants.
   MORRIS, Chief Justice.

This is a statutory action to determine adverse claims involving 120 acres of land in Mountrail County which was originally conveyed by United States patent to Lalir-its Mandrup Jensen on June 19, 192S, and described as the N ½- SW ½ and the SW ¼ NW ¾, of Section 34, Township 157, Range 94. On February 18, 1937, the defendant Jensen conveyed to the defendant John W. Smith all the oil, gas, and other minerals in and under the land in question and on October 27, 1931, granted an easement for a gas pipe line to the Montana-Dakota Power Company. Jensen paid taxes on the land for the year 1926 but paid no taxes thereafter.

The land was sold for taxes and bid in by Mountrail County for the years 1927 to 1936 inclusive. On January 31, 1938, the county auditor of Mountrail County issued a notice of expiration of redemption giving notice that the real estate was, at the tax sale held on December 8, 1931, sold to the county and no redemption made from the sale and that unless a redemption be made within ninety days from the date of the notice a tax deed would be issued to the county. The description of the land and the amount required to redeem are set forth in the notice as follows:

“Subdivision Sec. Town Total Amount . or or Necessary Lot Block Range To Redeem

NSW, SWNW 34 157 94 414.96.”

A' tax 'déed executed in the name of and by the county auditor was issued to Moun-trail County on May 23, 1938. 'On June 28, 1945, Mountrail Cpunty executed a tax deed to the defendant Fred Grandin. for the sum of $120. On. the same date that the deed was issued, a notice was also issued to., Laurits Mandrup Jensen, White Earth,. North Dakota,,,.advising of the sale to Fred Grandin and notifying Jensen that the sale would become final at the expiration of thirty days unless redemption was made by -paying $120. This notice was not delivered, but was returned by the post office. After the expiration of thirty days the deed was delivered to- Grandin, who, on February 16, 1949,-deeded the property to his wife Caroline Grandin, the present plaintiff. The plaintiff later gave an oil and gas lease and two mineral deeds affecting this land but they are not important in this case.

The defendant Jensen has answered, denying the allegations of the complaint and setting forth his claim as owner of the land subject to his deed of the minerals to the defendant Smith and by way of counterclaim asks that title to the property be quieted in him, save and except as to the rights of Smith. Smith answers setting up the title of Jensen and his conveyance of the minerals to Smith and asks that the title to the minerals be quieted in the defendant Smith. The plaintiff replied to these answers setting up statutes of limitation and laches. Jensen and Smith appeal from a judgment in favor of the plaintiff.

The plaintiff’s title, in so far as it is of record in the office of the register of deeds of Mountrail County, derives' from the tax deed issued to Mountrail County on May 23, 1938, and the tax deed given by Moun-trail County to plaintiff’s husband, Fred Grandin, on June 28, 1945. There is first placed in issue the validity of the tax deed proceedings. The appellants contend that the tax deed to the county was void because the purported notice of expiration of redemption issued by the county auditor, and upon which the validity of the deed to the county depends, did not comply with the statute and did not'terminate the right of redemption of the owner, Laurits Mandrup Jensen. As to this contention the appellants must' prevail.

The notice of expiration of redemption is defective in several particulars. It states the amount required to redeem in one lump sum. The tax sale was held on December 8, 1931, and‘was for 1930 taxes. The lump sum of $414.96 stated in the notice includes taxes from 1927 to 1936 inclusive. This is also stated in the tax deed from Mountrail County to Fred Grandin.

In Paragraph 6 of the syllabus in Fish v. France, 71 N.D. 499, 2 N.W.2d 537, 538, we said:

“Where land has been sold to the county at a tax sale because of failure to pay the taxes levied for the year 1934, and the county auditor proceeds to give notice of the expiration of the time of redemption, he is required to set forth in the notice the amount necessary to be paid in order to redeem from said tax sale; and in this amount he will include the amount for which the land, was sold with penalty and interest, together with the amount of all ' subsequent taxes due and payable on said land subsequent to the sale, with penalty and interest; and where the county auditor, in addition to said amounts, includes alleged delinquent taxes which accrued prior to the year 1934, together with penalty and interest thereon, and the amount of all taxes is set forth in one sum so that the delinquent taxpayer is not able to determine therefrom the correct amount necessary to redeem, the notice of expiration of time for redemption is insufficient to support the issuance of a tax deed.”

In this cas.e the notice included in the lump sum required :to redeem taxes levied for three years prior to 1930. - '

The notice of expiration of redemption was dated January 31, 1938, and in the lump sum stated as being necessary to redeem, taxes for the year 1936 were included. In a line of cases we have held that where a notice of expiration of the period of redemption is issued by the county auditor upon a tax certificate acquired by the county at a tax sale, the inclusion in a lump sum therein claimed to be due of taxes which have been .delinquent for less than three years prior to the service of the notice renders the notice invalid and a tax deed issued thereon void. Loy, for. Use and Benefit of Union Securities Co. v. Kessler, 76 N.D. 738, 39 N.W.2d 260; Knowlton v. Coye, 76 N.D. 478, 37 N.W.2d 343; McDonald v. Abraham, 75 N.D. 457, 28 N.W. 2d 582; Robertson v. Brown, 75 N.D. 109, 25 N.W.2d 781; Baeverstad v. Reynolds, 73 N.D. 603, 18 N.W.2d 20; Kelsch v. Miller, 73 N.D. 405, 15 N.W.2d 433, 155 A.L.R. 1186.

• The defects in the notice of expiration of redemption clearly render it void. Consequently, the deed issued to Mountrail County is void, as is the tax deed from Mountrail County to Fred Grandin.- He therefore had no title to convey to the plaintiff when he. attempted to convey- the property to her by warranty deed on February 16, 1949. . . ■

Not only was the tax deed to Mountrail County 'void because no lawful notice of. expiration of redemption was 'given but it is void for another reason. The grantor named therein is- M. L. Glarum, County Auditor of Mountrail County, and not the State of North Dakota, as the law requires. A tax deed to a county issued in the name of the county auditor rather than in the name of the state is void on its face. McDonald v. Abraham, 75 N.D. 457, 28 N.W.2d 582. Thus we have a claim of title originating in a tax deed which is void on its. face but which, if it. had been regular in^form, would still be void because of the failure of the tax deed proceedings to comply with 'the statute and terminate the right of redemption of the original owner. This deed was dated May 23, 1938, and recorded in the office of the register of deeds July 23, 1938.

The plaintiff and respondent herein claims to have acquired title by adverse possession under the provisions of Section 47-0603, NDRC 1943, as amended by Chapter 276, SLND 1951, which provides:

“A title to real property, vested in any person or those under whom he claims, who shall have been in the actual open adverse and undisputed possession of the land under such title for a period of ten years and who shall have paid all taxes and assessments legally levied thereon, shall be valid in law. A contract for deed shall constitute color of title within the meaning of this section from and after the execution of such contract.”

The summons in this action was issued January 21, 1952. Mountrail County deeded to Fred Grandin in 1945 and he deeded this property to the plaintiff in 1949. The ten year period prescribed by -the statute above quoted carries back to 1942, some three years before the county deeded to Fred Grandin. To make ten years of ad-, verse possession would require the tacking together of the possessions of Mountrail County, Fred Grandin, and the plaintiff Caroline Grandin. The appellants argue that this cannot be done for two reasons. First, that neither Mountrail County nor the Grandins ever had adverse possession of this property. And second, that Chapter 276, SLND 1951, which for the first time permitted tacking, is not retroactive and that under the facts in this case tack--ing of the possessions of the county, Fred Grandin,. and the plaintiff is not permissible.

The first question under the issue of adverse possession is whether the county was in the actual open adverse and undisputed possession within the meaning of Chapter 276, SLND 1951. The first requisite of a claim to property by.adverse possession under this statute is color or claim of title. Obviously it must be a defective title, otherwise there would be no need to rely upon adverse possession. Color of title is sufficient to support possession as being adverse. Power v. Kitching, 10 N.D. 254, 86 N.W. 737, 88 Am.St.Rep. 691. A tax deed issued by the county auditor, although void on its face, is sufficient to confer on the grantee color of title which will support actual adverse possession under the provisions of Section 47-0603, -NDRC 1943, as amended, Woolfolk v. Albrecht, 22 N.D. 36, 133 N.W. 310.

The next question is whether Mountrail County was “in the actual open adverse and undisputed possession of the land under such title” within ten years prior to the commencement of this action. Such possession is indispensable to- plaintiff’s right to claim under the statute.

Evidence with respect to possbssion is very meager. In fact there is nothing to indicate that the county ever took possession of the. land or took any steps looking toward possession or in any way indicated that the county claimed possession. At the time the county deeded to Fred Grandin, the land, according to a neighbor, was “just wild prairie.” There had been a field that had gone back to grass. There is no testimony to show when the field had been cultivated or for how long, a period, its extent or who broke the original sod. The land is mostly hilly. -The evidence does not show that it was ■ ever grazed, pastured, or any hay cut from it. It is not fenced. The reasonable rental value is twenty-four dallars per year. The-plaintiff has cultivated nine acres since 1948. Her son spent four hours picking rock from this field. This labor was worth two dollars an hour. That is the extent of plaintiff’s expenditures for improvements. No attempt to improve the land appears to have been made by the county or Fred Grandin. The land is located about three miles from plaintiff’s home. As far as this record shows, Mountrail County took no action with respect to either title or possession of the land, except taking the deed from the county auditor to Mountrail County on May 23, 1938, and recording it on July 23, 1938, until June 28, 1945, when the county auditor issued and mailed to Laurits Mandrup Jensen a notice of his right to redeem within thirty days and caused the tax deed to be issued in favor of Fred Grandin, which was executed and acknowledged on behalf of the county by the chairman of the board of county commissioners and the county auditor. It is clear to us that the county never took actual possession of the land. It never obtained title. The most that can-be said for the tax deed in favor of the county is that it was color of title which amounts to nothing unless connected with an adverse possession. 1 Am.Jur., Adverse Possession, § 207.

In D. S. B. Johnston Land Co. v. Mitchell, 29 N.D. 510, 151 N.W. 23, this court held that unimproved and unoccupied land is deemed to be in the possession of the holder of the legal title and not in the holder of title under void judicial proceedings. In Bull v. Beiseker, 16 N.D. 290, 113 N.W. 870, 871, 14 L.R.A.,N.S., 514, paragraph 5 of the syllabus says:

“A mere naked color of title, derived through a void foreclosure, does not draw to it even the constructive possession of the property, and therefore does not operate to vest any estate of interest in the property, and' cannot confer any such estate or interest by mere lapse of time.”

By analogy we conclude that no claim of possession can be based upon void tax deed proceedings alone. The ten year period prescribed by the statute does not begin to run until set in motion by actual adverse possession. The nature of that possession may vary with the character of the land involved. But in each instance it requires something more than mere constructive possession. See Nash v. Northwest Land Co., 15 N.D. 566, 108 N.W. 792; Mears v. Somers Land Co., 18 N.D. 384, 121 N.W. 916; Enderlin Inv. Co. v. Nordhagen, 18 N.D. 517, 123 N.W. 390; Buttz v. James, 33 N.D. 162, 156 N.W. 547; Page v. Smith, 33 N.D. 369, 157 N.W. 477.

Lasley v. Kniskern, 152 Mich. 244, 115 N.W. 971, 972, involved a claim of title by adverse possession based upon void tax titles. In reversing the trial court the Supreme Court of Michigan said:

“It is not enough that a party sets up a hostile claim, and that that claim is known to the original owner. He who seeks to obtain title’ by adverse possession must not only have a -hostile claim, but he must be able to point to a possession under it which is hostile to the original owner.”

In Veitch v. Hard, 200 Ala. 77, 75 So. 405, it was held that the mere recording, of a deed to a tract of land is not adverse possession thereof and the mere claim of title not accompanied by actual possession, no matter how long continued, is not sufficient to confer title against the true owner.

In Morris v. St. Louis Nat. Bank, 17 Colo. 231, 29 P. 802, 804, it is said: ,

“ * * * while the statute provides that a tax deed, properly executed and recorded, prima facie conveys the title, it nowhere provides that such deed shall give the purchaser possession of the property conveyed. ■ It certainly does not give him an actual,. adverse possession, such .as would compel the original owner to resort to an action in the nature of ejectment to recover possession of the premises. On the contrary, the original owner being in possession by virtue.of a perfect legal title, such possession is to be deemed sufficient for purposes of remedy, and to continue until interrupted by an actual entry and adverse possession taken by another.”

Morton v. Van Orsdol, 203 Okl. 394, 222 P.2d 520, 523, is very much in point. The action was one to quiet title. The plaintiff had acquired a county commissioner’s deed following a resale of the lands to the county for delinquent taxes, which is exactly the situation of the plaintiff in this case. In that case defendant was the owner of the legal title except for’ •a county treasurer’s deed, known as a resale deed, to the 'county and the county commissioner’s deed to the plaintiff. The plaintiff had obtained his deed from the county thirteen years before the action was commenced. An Oklahoma residuary statute of limitations required that an action for the recovery of real property “not here-inbefore provided for” should be brought within fifteen years. The county treasurer’s de.ed to the county had been issued more than fifteen years prior to the commencement of the action. In order to succeed in establishing the fifteen years of adverse possession the plaintiff had to go back to the county treasurer’s deed under which the county claimed title. The deed which the county had obtained, though regular on its face, was void. The court said:

“Herein the plaintiff made no claim of having taken possession of the property until receipt of commissioner’s deed, or 13 years before the commencement of this action, but suggests that he was a successor to the county in claim of title under the resale deed issued 3 years before commissioner’s deed, and that presumption exists that the county officials took possession of the land under the resale deed.
' “But the resale deed was void and no presumption follows that the county took possession of the defendant’s property under such void instrument. The following rule as stated in 2 C.J. S3, is here applicable: ‘The constructive possession of land is always 'in the holder of the best title, unless he has . renounced it, and this constructive possession can never be ousted by anything less than an actual possession maintained for the necessary period.’ See also, 2 C.J.S., Adverse Possession, § 19.
“In plaintiff’s occupancy of the land for 13 years' he acquired no title by prescription and the statutes supra do not apply in bar of defendant’s proceeding against the void conveyance under which the plaintiff claims title.”

Although Mountrail County had color of title to the land in question, it never took actual possession thereof. . Without actual possession there could be no adverse possession by the county to add to that of the Grandins to make up the statutory ten year period. We need not consider the question of tacking or whether possession by a county under a tax title may ever be adverse to the original owner who has the right of repurchase.

In reply to defendants’ counterclaim the plaintiff pleads laches and asserts that even though it be held that the plaintiff has not acquired title by adverse possession, nevertheless the failure of the defendant Jensen to assert his legal title against the color of title which was conveyed to Fred Gran-din and the possession of plaintiff and her husband constitutes laches and equitable estoppel on the part of Jensen which bars him from successfully asserting his counterclaim. A similar assertion was made in Morton v. Van Orsdol, supra. In rejecting the contention the court said:

“The plaintiff erected a connecting fence on his commencement of pasturage of the land, and paid the taxes on the land during his use of the land, and the land has increased in value, but through no effort of the plaintiff. These facts do not reflect a detriment to plaintiff growing out of defendant’s delay in attacking plaintiff’s claim of title as sufficient to justify application of the doctrine of laches.”

In arriving at this conclusion the court also quoted the following passage from Jones v. McNabb, 184 Old. 9, 84 P.2d 429:

“The question of whether a claim is barred by laches must be determined by the facts and circumstances in each case and according to right and justice. Laches, in legal significance, is delay that works a disadvantage to another and causes change of condition or relation during the period of delay.
“The failure of the owner of real estate to pay taxes thereon from 1911 to 1936, and the payment of such taxes by the purchaser at a tax sale, and the increase in value of the property by the discovery of oil nearby, held not sufficient to sustain a defense of laches in favor of the holder of a void tax deed.”

In Larson v. Quanrud, Brink & Reibold, 78 N.D. 70, 47 N.W.2d 743, 745, 29 A.L.R.2d 230, syllabus 9, we said:

“Laches does not arise from mere delay or lapse of time. The party against whom laches is sought to be invoked must be actually or presumptively aware of his rights and fail to assert them against a party who has in good faith permitted his position to become so changed that he cannot be restored to his former state.”

We have applied this principle in tax title cases — Werner v. Werner, 74 N.D. 565, 23 N.W.2d 757; Sailer v. Mercer County, 75 N.D. 123, 26 N.W.2d 137; Morehouse, for Use and Benefit of Sailer v. Paulson, 75 N.D. 525, 28 N.W.2d 608; Star v. Norsteby, 75 N.D. 563, 30 N.W.2d 718; Loy for Use and Benefit of Union Securities Co. v. Kessler, 76 N.D. 738, 39 N.W.2d 260 — and other cases — Gronna v. Goldammer, 26 N.D. 122, 143 N.W. 394, Ann.Cas. 1916A, 165; Dakota Trust Co. v. Headland, 57 N.D. 810, 224 N.W. 220; Commercial Credit Corp. v. Dassenko, 77 N.D. 412, 43 N.W.2d 299. See also 19 Am.Jur., Equity, § 501; 30 C.J.S., Equity, § 116.

The Supreme Court of South Dakota has said:

“Laches is not, like limitation, a mere matter of time, but principally a question of the inequity in permitting the claim to be enforced, an inequity founded upon some change in the conditions, or the relations of the property or the parties.” Shearer v. Hutterische Bruder Gemeinde, 28 S.D. 509, 134 N. W. 63, 65. See also Schwartzle v. Dale, S.D., 54 N.W.2d 361.

It is suggested that the cáse of Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808, while not directly in point, presents analogous, reasoning that supports plaintiff’s contention. The vendee in a land contract sought to enforce specific performance of a contract made more than ten years previous to the bringing of the action. The vendee had been ousted. The court held that because the plaintiff Raasch had remained completely silent for a period of ten years and acquiesced in the ouster he had in fact and in law abandoned the land and the contract and denied him the relief of specific performance. The analogy between that case and the one at bar is indeed remote. The only evidence to which the plaintiff points as’indicating abandonment is the failure of Jensen to pay taxes. On the other hand, Jensen executed an easement to Montana-Dakota Power Company in October 1931 and gave a mineral deed to John W. Smith in February 1937: Thus it is indicated that he had not abandoned the land' up to that time. If the tax deed proceedings by the county had been valid, Jensen would have had the right to repurchase his land as long as the tax title remained in the county. Section 57-2819, NDRC 1943. There is no proof that he ever received the notice purporting to terminate his right of repurchase. This record does not show an abandonment.

The first actual possession adverse to Jensen appears when the plaintiff’s son broke up nine acres of sod and spent four hours picking rock in 1948. There is no evidence to indicate that Jensen knew that -the tax title of the county was defective. If he is charged with notice of the law in that respect, then so was the purchaser from the county and the plaintiff. The situation in this respect is similar to the one presented in Morehouse, for Use and Benefit of Sailer v. Paulson, 75 N.D. 525, 28 N.W.2d 608, 616, where, in considering the question of laches, we said:

“Respondent Paulson alleges loss occurring to him because of rise in price of land, some improvements made — all in belief in the validity of the tax proceedings. ‘ “Their mutual ignorance of the'invalidity of the tax sale no more affected the conscience of one than the •other; and it may be more unconscionable to enforce the - invalid tax sale against one party than it would be. against the other to set it aside, and leave the parties to their rights as they would -then .exist.” ’ Werner v. Werner, 74 N.D. 565, 572, 23 N.W.2d 757, 759.
“Respondent Paulson alleges laches.. There is. no .merit in this.. Any delay in bringing action on the .part- of thp .plaintiff did. not in; any way alter the status of the defendant Paulson. In. this respect it may not be out of place to mention that if one attempting to avoid tax deeds- is presumed to know the law, and the effects thereof, the purchaser, from the county would also be required to knpw that this notice of expiration of period of redemption is invalid because it required as terms of redemption the payment of taxes which could not be included,.and the payment of the hail taxes.”

As bearing upon the equities of the case, we point out that Section 57-4510, NDRC 1953 Supp. provides where an action is brought to test the validity of a deed issued by the county to a purchaser of lands acquired through tax deed' proceedings, the action may not proceed until the party assailing the deed, within the time ordered by the court, shall deposit with the clerk of court for the benefit of the county should the deed be held invalid the amount of all ■delinquent and unpaid taxes on the property, including penalty, interest, and taxes paid by the purchaser. It is further provided that should the action be determined adversely to the purchaser, the county shall repay to him all money which it received on the purchase. In compliance with this statute, the appellants deposited with the clerk of the District Court of Mountrail County $1220.97. Under the terms of this statute, the plaintiff will be paid all that was paid to the county and the county, which received only $120 on its sale to Fred Grandin, will receive all unpaid taxes, which include the lump sum of the taxes amounting to $414.96 for which the property was originally sold to the county ip the void tax deed proceedings. Thus the plaintiff will be reimbursed, and the county will realize a considerable profit'out of the deposit.

We reach the- conclusion that the appellants, Jensen and Smith, are not barred by laches from maintaining their counterclaim.

In further 'reply to defendants’ counterclaim, the plaintiff sets up as a defense thereto our residuary statute of limitations, being Section 28-0122, NDRC 1943, which provides:

“An action for relief not otherwise provided for must be commenced within ten years after the cause of- action shall have accrued.'’''

Plaintiff cites two cases involving void mortgage foreclosures where it is held that the adverse possession of a mortgagee in possession for ten years could be asserted under the residuary statute as a defense in an action to quiet title. They are Nash v. Northwest Land Co., 15 N.D. 566, 108 N.W. 792; Steinwand v. Brown, 38 N.D. 602, 166 N.W. 129. In Mears v. Somers Land Co., 18 N.D. 384, 121 N.W. 916, and Jungkunz v. Comonow, 43 N.D. 212, 174 N.W. 68, this court recognized the application of the ten year residuary statute. But in those cases, also, adverse possession had existed for ten years. In the latter case the court held that the cause of action to redeem from a void foreclosure was barred by both the statute of limitations and laches, more than ten years having elapsed since the cause of action arose.

“The presumption of the law is against, and not in favor of, an adverse possession.” Blessett v. Turcotte, 23 N.D. 417, 136 N.W. 945, 948.

In the case at bar adverse possession has not continued for a period of ten years prior to the bringing of the counterclaim. This distinction is important. All that Mountrail County ever had was bare color of title, which was a mere cloüd upon the title of the reoord owner Jensen. His presumptive possession was never divested by the county and as far as this record shows was not divested until 1948. If the county’s void' tax deed had in fact been valid, Jensen would have had the right to repurchase the land as long as the tax title remained in the county. Section 57-2819, NDRC 1943. Did the ten year statute under consideration run against Jensen’s right of action to quiet title during the period in which the county held mere color of title under a void tax deed and during which Jensen would have had the right to repurchase if the county’s title had been valid? Certainly one who has valid title and possession of land need not be ever watchful lest someone place a void deed of record which after a period of ten years the owner would be powerless to have removed as a cloud upon his title because of our statute of limitations.

In Bailey v. Hopkins, 152 N.C. 748, 67 S.E. 569, 570, it is said:

“A landowner cannot be expected to bring action against every man who, while not in possession, shall declare he claims an interest in the property, under penalty to the owner after the lapse of 10 years of being barred of action for a later assertion of title.”

In Secret Valley Land Co. v. Perry, 187 Cal. 420, 202 P. 449, 451, the Supreme Court of California in considering both laches and the statute of limitations expressed itself pertinently as follows:

“A defendant holding the legal title, or a paramount claim to the legal title, is not called upon to take action against a hostile claim which is not of a nature to ripen into a valid adverse title. Farmers’ Loan & Trust Co. v. Denver, L. & G. R. Co., 126 F. 46, 60 C.C.A. 588; Hays v. Marsh, 123 Iowa 81, 98 N.W. 604.
“It would be strange application of the doctrine' of laches to hold- in this instance that the plaintiff could maintain its attack upon the validity of defendants’ claim of title, but that the defendants might not defend by showing the invalidity of plaintiff’s claim. Defendants’ right of action is no more stale than that of plaintiff. Both arose> at the same time. When plaintiff re-: deemed from the tax sale and obtained a certificate of purchase from the state, a right of action arose in favor of each claimant against the other, where neither had a right of action before.
“The samé argument applies to the plea of the statute of limitations. Plaintiff commences this action 9 years after its right of action accrued, and interposes the plea of the statute of limitations against an affirmative defense which arose at the same time.
“In any event, this is not a case where the statute of limitations has run against either of the parties. An outstanding adverse claim, which amounts only to a cloud upon the .title, is a continuing cause of action, ánd is not barred by lapse of time, until the hostile claim is asserted in some manner to jeopardize the superior title. So long as the adverse claim lies dormant and inactive the owner of the superior title may not-be incommoded by it, and has the privilege of allowing it to stand indefinitely. Each day’s assertion of such adverse claim gives a renewed cause of action, to quiet title until such action is brought. People v. Center, 66 Cal. 551, 565, 5 P. 263, 6 P. 481; Hyde v. Redding, 74 Cal. 493, 16 P. 380; Kypadel Coal & Lumber Co. v. Millard, supra. (165 Ky. 432, 177 S.W. 270.)” See also Page v. Smith, 33 N.D. 369, 157 N.W. 477; Newport v. Hatton, 195 Cal. 132, 231 P. 987; Cooper v. Rhea, 82 Kan. 109, 107 P. 799, 29 L.R.A.,N.S., 930, 136 Am.St.Rep. 100, 20 Ann.Cas. 42, and note.

Assuming that the ten year residuary statute of limitations is otherwise applicable under the facts in this case, it is clear to all of us that the mere color óf title of Mountrail County as evidenced by its void tax deed did not start the period of the statute to run and that ten years did not elapse between the time the appellant Jensen’s cause of action accrued and his assertion thereof in his counterclaim. The same reasoning applies to the rights of the appellant Smith, with the same result. .

The judgment appealed from is reversed and the case is remanded for entry of judgment in conformity herewith.

BURKE, SATHRE and GRIMSON, JJ., concur.


author: SATHRE, Judge.

text:
    PETERSON v. STATE HIGHWAY COMMISSIONER.
    No. 7391.
    Supreme Court of North Dakota.
    Jan. 14, 1954.

    T. S. Stuart, Crosby, for plaintiff and respondent.
    Olaf Braatelien, Crosby, amicus curiae.
    E. T. Christianson, Atty. Gen., and Ernest R. Fleck, Special Asst. Atty. Gen., Alvin C. Strutz, Special Asst. Atty. Gen., on oral argument, for defendants and appellants.
   SATHRE, Judge.

This action arose out of a controversy between the plaintiff and the County Commissioners of Divide County and the State Highway Commissioner. The State Highway Commissioner had taken a part of plaintiff’s land for highway purposes and the County Commissioners of the county were requested by the Highway Commissioner to assess the damages and make an award to the plaintiff for the land thus taken. All of the proceedings were had under Title 24, of the Revised Code of North Dakota for 1943 which deals with the state highway system and the duties of the State Highway Commissioner. The county commissioners inspected the land taken and assessed the damages and made an award to the plaintiff of $25 per acre for the land taken which was 4.6 acres. The plaintiff was dissatisfied' with the award and attempted to take an appeal to the district court of Divide- County.

The plaintiff prepared notice of appeal and filed the same with the Clerk of the District Court and served the same upon the Chairman of the Board of . Cpunty Commissioners within thirty days as provided by Section 24-0722. However said notice was not served on the Highway Commissioner until after the time for appeal had expired. No undertaking for costs was served or filed as required by Section 24-0723 NDRC 1943. Thereafter the defendants made a motion in the District Court of Divide County for dismissal of plaintiff’s appeal upon the grounds that no undertaking was filed as required by Section 24-0723 NDRC 1943.

,The motion was heard before the Hon. A. J. Gronna,. Judge of said District Court, and after hearing the motion was denied, and an order made and entered accordingly. The defendants appealed from the order upon the same grounds as stated in their motion made in the District Court for dismissal of plaintiff’s appeal.

The appellants contend that plaintiff’s attempted appeal to the District Court is fatally defective for the reason that no undertaking was furnished and filed as required by Section 24-0723 NDRC 1943.

The land of the plaintiff involved here was taken by the State Highway Commissioner under the powers granted by Title 24-01 NDRC 1943 governing the state highway system.

Section 24-0123 NDRC provides that any party -aggrieved by the proceedings of the State Highway Commissioner in the taking of land or materials, or by the estimate of damages and the award of the county commissioners, shall have the remedies provided by Chapter 7 of this title for appeal from any determination of the board of county commissioners in the taking of land for highway purposes. The statute provides further that an appeal from the award by the board of county commissioners, without filing a cost bond may be taken by the State Highway Commissioner. !

Chapter 7 • referred to- in this section embraces sections 24-0722, 24-0723 . and 24-0724. - Section 24-0722 ■ provides -that any person feeling himself aggrieved by any determination or award of damages by the board- 'of county' 'commissioners having jurisdiction may áppeal within thirty days' from the filing of such' award or determination. Section 24-0723 provides that such appeal Shall' be taken by service and filing- of a notice of appeal and undertaking for costs.-1 Section 24-0724 provides that where the appeal is taken to the District Court the undertaking shall be approved by the District Judge. ’In the instant case the plaintiff, in appealing to the District Court from the award made by the county commissioners, served-and filed notice of appeal, but did not serve or file any bond for costs as required by Section 24-0723.

There is no ambiguity in the language of the statutes quoted. Section 24-0123 supra provides that any party feeling aggrieved by the proceedings of the State Highway Commissioner in the taking of land, or by the action of county commissioners in making an award must pursue the remedies provided by Chapter 7. Section 24-0723 provides specifically that an undertaking for costs must be served and filed with the notice of appeal. The requirement for a bond is almost identical with the requirements of the statutes providing for appeals from the justice courts to the district courts and from the district courts to the supreme court. It is well settled by decisions of this court that in taking appeals the filing and service of an undertaking when required by statute is a jurisdictional prerequisite. McClenahan v. Meek, 68 N.D. 255, 278 N.W. 469; Stewart v. Lyness, 22 N.D. 149, 132 N.W. 768.

In the amicus curiae brief counsel argues that section 24-0514 NDRC 1943. governs the appeal under .consideration in the case at bar. This section provides among other things, that “Any party aggrieved by the award made as provided in section 24-0511 [NDRC 1943] shall have the remedy now provided by law for an appeal from any determination of the board of county commissioners in taking of lands by a county for highway purposes. Appeal from such award shall be taken without bond * *

Counsel overlooks the fact that sections 24-0511 and 24-0514 deal with the taking of lands, by the county commissioners for county roads and have no application to proceedings by the state highway commissioner in taking lands for state highways. The only function of the county commissioners when land is taken for state highways is to assess the damages and to make an award to the owner of the lands taken upon request by the State Highway Commissioner. Section 24 — 0123 expressly provided that a party appealing from the proceedings of the Highway Commissioner or from the award made by the county commissioners at the request of the Highway Commissioner shall have the remedies provided by Chapter 7, but exempts the State Highway. Commissioner from filing a cost bond in appealing from an award made by the county -commissioners. It is clear that the exemption in section 24 — 0123 applies only to the State Highway Commissioner and has no application to appeals' made by parties aggrieved by the proceedings of the State Highway Commissioner 'or by awards made by the county commissioners where lands are taken for state highways.

The plaintiff having failed to file a cost bond as required by Section-24 — 0723, NDRC 1943, the district court was without jurisdiction to hear and determine the issues in the case. The order of the district court denying the motion of .the defendant for dismissal of plaintiff’s appeal to the district court must therefore be reversed and it is so ordered. ■

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


author: MORRIS, Chief Justice. GRIMSON, Judge

text:
    UMLAND v. FRENDBERG.
    No. 7421.
    Supreme Court of North Dakota.
    March 12, 1954.

      Strutz, Jansonius & Fleck, Bismarck, for plaintiff and-.respondent/ '''''•'
    F. E. McCurdy, Bismarck, for defendant and appellant.
   MORRIS, Chief Justice.

' The plaintiff 'in this action seeks to recover $400 damage 'to1 his automobile and $70 for the loss of i'ts use for approximately six’ days. A 'jury' was waived and the case was tried to the court by stipulation of the parties. The'baSi's of the action-is a 'collision between the plaintiff’s automobile and that of the defendant,- which the plaintiff alleges- was due' to thé defendant's negligence. 'The defendant;5 on the other hand; denies that he wa's negligent and1 alleges that, if the plaintiff’s property suffered any damage, the: negligence and the carelessness of the plaintiff- contributed': proximately thereto. ■ ■

The trial court found that plaintiff's damages were caused by the negligent, .operation of the defendant’s automobile by the defendant and that there was no contributory negligence on the part of the plaintiff. He awarded damages in the sum of $362.41. From a judgment entered .in accordance with the trial court’s findings and order for judgment,' the defendant appeals and demands a trial anew in this court.

Under the provisions of Section 28-2732, NDRC 1943, on appeal from an action tried by the court without a jury,, whether triable by a jury or not, ■

“The supreme court shall try anew the questions of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and shall either affirm or modify the judgment or direct a new judgment to be entered in the district court.”

Under the provisions of this section the supreme court must review and weigh the evidence independently of the trial court’s findings. But in doing so this court will give those findings appreciable weight. This is especially true when the findings are based upon the testimony of witnesses who appeared in person before the trial court. Knell v. Christman, N.D., 59 N.W. 2d 293, and cases therein cited.

The accident in question occurred at about 2:30 p. m., June 9, 1951, on U. S. Highway No. 10, .about twenty miles , east of Jamestown. ■ The.. plaintiff testifies that he was driving about fifty miles an hour in an easterly direction. The defendant, going at about the. same speed, had been for some time traveling in the same direction about a block ahead of' the plaintiff. As the defendant approached an- intersection of No. 10 with another highway running north and south near the town of Eckelson, the defendant got over ón the left, or north, side of the road. The plaintiff' “figured” that the defendant would turn back again into the right lane 'but instead of doing that the defendant turned sharply to the left and struck a car coming from the opposite direction. ' Thé defendant had applied his brakes about seventy-five feet before the collision occurred. The plaintiff also applied his brakes, slowed down a bit, and then released them. When the collision occurred the pláintiff was going not over thirty-five miles ah hour. When the defendant’s car collided with the car traveling in the north traffic lane his car bounced back and hit the plaintiff’s car just as the plaintiff was passing in the 'south lane, resulting in the damages' for which this action is brought. The' plaintiff testifies that he was about ten or twelve-feet behind the Frendberg car when the collision took place and that the Frendberg car was bunted from north to .south .a distance of ten or eleven feet until it hit the plaintiff’s car.

A Mrs. Frankenberger was the owner of and riding in the car that first, collided with the Frendberg car.. Her car was being driven by Mrs. Frankenberger’s sister-in-law. Her father and daughter were also passengers. This party was driving westward on No. 10 toward Jamestown. She describes the accident this way:

“Well, I couldn’t exactly say' how long. I- saw that my sister-in-law :and I both saw him, and' I says,: ‘Take to the ditch.’ Then he went back like he was going for his .own side of the road, so we kept to going; and all of a sudden he went into us.” ■ ■ .

Mrs. Frankenberger. also testified that the Frendberg car hit hers on thq left front wheel ‘ and knocked it under the engine. The Frankenberger car was stopped instantly with two wheels in.the ditch.and two wheels on the road. She also said that the Frendberg car “bounced right back on the highway” and “His car bounced just like a rubber ball bounces.’’ .

The sheriff of Barnes County testified that he reached the scene of the accident shortly after three o’clock. There . he found three cars that had been in an accident. One' car was in the .ditch on the north side of the highway; one was on the south side of the highway facing east; and the Frendberg car was across the road facing north at a little angle northeast- and southwest. He found glass and debris “Way over the center line and closer to the north side.” ' He also testified that there were tire 'burns on the highway where the Frend-berg car had been sh'ovéd back 'and forth on accopnt of the’two collisions.

The defendant’s version of the accident is as follows: :

“I was -going to'take that road to Eckelson. A little beyond' that" underpass I was-going around between fifty and sixty and began to slow- down and turned my left-hand signal ón and started edging over toward the road to where I' was going to turn off. Then as I was going along, I held my hand on that signal light because it automatically turns out. • Well, I had to' be sure, so I held it down. Then I looked into the left-hand lane to be sure' it was ■ clear so I could make a'turn. I'took special care. I don’t hear; and when I’m driving, my attention is 'on the road becadse there is no radio or an-y-thing to- bother me' at all; The'-road was entirely clear. 1
“And then .1 started to’ make, the turn; and just as I got over, bang. .That..is the way the thing happened.”

Neither Mrs. Frankenberger nor the plaintiff saw the defendant’s signal lights.

As bearing upon the defendant’s negligence, we call attention to these statutes:

Section .39-1011, NDRC,1943, which provides :

‘■‘The driverof a vehicle intending to turn at an intersection:
* * ⅜
“2. When intending to turn to the left, shall approach such intersection in the lane for traffic to the right of and nearest to the center line of the highway, and in turning shall pass beyond the center of the intersection, passing as closely as practicable to the right thereof before turning such vehicle to the left.”

Section 39-1017, NDRC 1943, requires that:

“When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right * *

It is obvious from our summary of the testimony that in approaching the intersection the defendant violated Section 39-1011, supra. If the defendant actually reached the intersection before turning to the left, a matter concerning which the evidence is in dispute, when he turned his vehicle he was on the left with respect to any other vehicle approaching the intersection in the north lane from the east. It is clear that the Frankenberger car was approaching the intersection at approximately the same time from the defendant’s right and it therefore had the right-of-way. Under these circumstances it became the duty of the defendant to look out for and give to the Frankenberger car the right-of-way. This he failed to do. His failure to do so was the proximate cause of the collision between the defendant’s car and that belonging to Mrs. Frankenberger', which resulted in defendant’s car being' bounced back into plaintiff’s traffic lane. The negligence of the defendant with respect to both collisions is clearly established. Vance v. McCleary, 168 Wash. 296, 11 P.2d 823.

In Boyd v. Close, 82 Colo. 150, 257 P. 1079, 1080, it is said:

“If cars approach each other on a straight track, each on the right-hand side of the road, and neither turn, no question of precedence can arise. But he who turns, thus transferring the other from his left to his right, must yield. Otherwise, no rule governs, and • ‘the race is to the swift and the battle to the strong.’"

As a result of the collision with the Frankenberger car the Frendberg car was bounced back and into the side of the plaintiff’s car as the plaintiff was passing in the south lane of traffic. For injury to his car resulting from the second collision, the plaintiff seeks recovery here. The defendant urges that recovery is barred by the contributory negligence of the plaintiff. The chain of events which resulted in the injury to the plaintiff’s car was set in motion by the negligence of the defendant and unless the contributory negligence of the plaintiff intervenes he is entitled to recover.

Section 39-1009, NDRC 1943, provides that:

“The driver of a motor vehicle shall not-follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicles and the traffic upon and condition of the highway.”

Highway No. 10 at and near the point where the accident occurred is paved with a surfacing known as blacktop, twenty-four feet in width. On each side of this pavement is a shoulder with a surfacing of gravel or thin 'blacktop. Outside of the shoulders are ditches which vary In depth according to drainage necessities.

As he approached the point where the accident took place the plaintiff was driving about a block behind the defendant. Both were traveling at about the same speed and had been doing so for seven or eight miles. The plaintiff saw the defendant going over to the center of the road. He slowed up until he was eighty or eighty-five feet behind the defendant. After a short distance the plaintiff released his brakes. He says:

“I let them up because I thought it-would be clear sailing, that’s what I figured.”

The record further discloses the following:

“Q. At the time you let up on your’ brakes, there was one car coming west from the east, wasn’t there? A. Yes.
“Q. There was also Frendberg who had slowed down and yourself who had just barely put on your brakes and then let them up again, that’s right, isn’t it? A. I guess so, yes.
“Q. You didn’t have any idea and didn’t know that there was the makings of a pile-upi there when Frendberg was there making a turn and a car coming at him from the east and you coming at him from the west, and so you let up on your brakes and kept on going. A. I figured I’d get by.
“Q. You thought you could get by, and you couldn’t. A. But I had the right-of-way -because- I had lots of room. He could have just as well flew the other way.
“Q. Then, according to your testimony, this collision between Frend-berg and the other car must have occurred before your collision with Frendberg. A. That’s right.
“Q. That would be a very short time, wouldn’t it? ■ A. Yes.
“Q. How far behind Frendberg do you think you were at the time of his collision with the other car, with the car that was going west ? A. Oh, I’d judge ten or twelve feet.”

And again' plaintiff says Frendberg’s car was bounced back “Clear as far as it could go until it hit me. * * * Halfway off of the tar on the other side.”

“The standard to be used in determining, whether or not plaintiff has been guilty of such contributory negligence as will defeat recovery is'whether the actions of the plaintiff were those of an ordinary prudent person under ' the same circumstances and in the same position.” Bagg v. Otter Tail Power Co., 70 N.D. 704, 297 N.W..774, 775.

Of course, if the plaintiff’s car had not been passing behind the defendant’s car as it turned and collided with the Frankenberger car, the second collision would not have occurred. But we cannot infer that the plaintiff was negligent merely because his car was in the path of the backwardly bouncing car of the defendant. Neither does it appear that the plaintiff was violating Section 39-1009, NDRC 1943, pro-, viding that the' driver of a motor- vehicle shall not follow another vehicle more closely than is reasonable and .prudent. When the accident occurred the plaintiff was not following but was passing behind the defendant who had turned out of the plaintiff’s lane of traffic. The plaintiff was not bound to anticipate that the defendant would negligently handle his car in such a manner as to create a traffic hazard.

“There is a natural presumption that every one will act with due care'; and it cannot therefore be imputed -to a plaintiff as contributory negligence that he did not anticipate culpable negligence on the part of the defendant.” Ruehl v. Lidgerwood Rural Telephone Co., 23 N.D. 6, 135 N.W. 793, L.R.A. 1918C, 1063, Ann. Cases 1914C, 680.

The- driver of a motor vehicle approaching an intersection has the right to assume that others likewise approaching the intersection will observe the law of th‘e road. Pederson v. O’Rourke, 54 N.D. 428, 209 N. W. 798. The plaintiff cannot be charged with contributory negligence because he relied on that assumption, unless the circumstances were such that a reasonable oerson would conclude that the defendant intended to disregard the law in a manner likely to create a hazardous situation. Under the circumstances here presented, the plaintiff was not bound to anticipate the hazard created by the defendant’s negligence in time to avoid the second collision. Zettle v. Lutovsky, 72 N.D. 331, 7 N.W.2d 180.

We agree with the trial court in his finding that the plaintiff’s damages were caused by the negligent operation of defendant’s automobile and that; the defendant faiied to establish a defense of contributory negligence on the part of the plaintiff. The judgment is affirmed.

■BURKE and SATHRE, JJ., concur.

GRIMSON, Judge

(dissenting),

I am unable to concur in the opinion of the majority of the court. My conclusion from the' evidence- is that the plaintiff was guilty of -contributory negligence.

The evidence shows that the plaintiff had been following .the defendant going east on U. S. Highway No. 10, east of Jamestown, at about the same speed and .about a block distant. On approaching Eckelson, where the defendant claims he was intending to turn north on a crossroad, plaintiff saw the defendant apply his brakes and slow down. Plaintiff then gained on defendant and approached within 85. feet of defendant’s car. Plaintiff then applied his brakes but almost immediately released- them. Before that, however, he had seen defendant’s car swer.ve north" across the center line of the highway and back- again. He had also seen a car approaching- from the east. He testifies :

“Q. You could see, and you saw, that he was starting to turn left, that -is going toward the center of the road? A. Yes.
“Q. You knew then that there was something unusual when you saw him apply his brakes and start to turn? A. I didn’t know what he had in his mind.
Q. But you saw him do that, didn’t you? A. Yes. , * * *
“Q. Then how lorig did you travel while your brakes were applied? A. It wasn’t very" far.
“Q. How far in your best judgment? A. 10 feet.
“Q. Did you apply your brakes hard? A. No.
“Q. Just easy? A. Yes. .
“Q. Then you let them up again? A. I let them up because I thought it would be clear sailing, that is what I figured.
“The Court: How is that?
“Witness: I figured I had clear going.
“Q. (By Mr. McCurdy) You saw this car coming from the east, didn’t you? A. Yes. There was more of them coming, too.
“Q. There was one in particular that — A. I wasn’t watching that close because I was watching my car.
“Q. You- weren’t watching the car' coming from the east? A. That-didn’t bother me. I had my right-of-way, and that car was coming the right way.”

Then follows the" testimony set out in the majority opinion -hereby -referred to.

In Bagg v. Otter Tail Power Co., 70 N.D. 704, 297 N.W. 774, 778, the court says:

“The standard to be used in determining whether or not a plaintiff has been guilty of such contributory negligence as will defeat a recovery is whether the actions of the plaintiff were those of an ordinarily prudent person under the same circumstances and in the same position, Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427. See, also, Morrison v. Lee, 16 N.D. 377, 113 N.W. 1025, 13 L.R.A.,N.S., 650.”

The evidence : shows that .the- plaintiff, when he was 85 feet.back of defendant’s car,. saw thé defendant driving his car in the middle of the highway, wavering as to whether he was turning north or back into the right lane of the highway ahead of plaintiff. Plaintiff also saw the car coming from the east on its right side of the highway and it must have been very cióse because the plaintiff had only traveled 73 of the, 85 feet he was behind defendant’s car when that car and the defendant’s car collided. It should have been clear to the plaintiff that defendant would either turn north and risk collision with the closely approaching west bound car or turn into the right lane in front of plaintiff.

Plaintiff, however, paid no attention to those two cars but released his brake and sailed forward at 35 miles per hour, watching only his car, until the first collision happened when he was only 12 feet behind defendant’s car. Because the plaintiff had not been watching the cars before him and had driven up so close he had gotten himself into a perilous position. To get so close to another car under the circumstances was contrary to Section 39-1009, NDRC 1943, which provides:

• “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable- and prudent, having due regard to the speed of such vehicles and the traffic upon and condition of the highwáy.”'

After the fir§t collision defendant’s car recoiled diagonally, .to. the southwest into the path, of the onnjshing car of the plaintiff. The defendant’s right, rear bumper and fender .bumped, into the plaintiff’s left, front fender and wheel causing the damage complained of.

It is contended that the plaintiff had a right to be there as he had the right of way and that he did not have to anticipate any hazardous situation that might occur. That would be true had there been no circumstances to warn him that danger might ensue. It is not sufficient to have the right of way nor to rely on the presumption that everybody will obey the rules of the road. Even if the driver has the right of way he may not wholly disregard other cars on the highway. The driver of an automobile must pay attention to the traffic and to the situation existing at that particular time. On seeing circumstances on the highway thát might develop into danger he must use all care to avoid trouble. It is still his duty to take every reasonable precaution to avoid' a collision with another automobile even if such automobile was violating the rules of the road.

The circumstances hereinbefore set out as to the manner of the defendant’s driving, from ydiich the plaintiff said he could not tell \yhat the defendant was going to dp, and the close approach of the west bound car were circumstances' which should have put him on .notice, that he might not have a clear right of way. Under the circumstances here I do not believe the actions of the plaintiff were those of an ordinarily prudent man. Such a man would watch the cars ahead of him and remain far enough behind to keep out of trouble. The plaintiff - could' have done that. He neglected his duty in that respect.

In 5 Am.Jur., Automobiles, Sec. 298, p. 667, it,is said that if the driver of an automobile on approaching, an intersection “has reason to think that because .of the other driver’s negligence he will not- be accorded the right of way, it becomes his duty to do what he can to avoid collision, as by stopping or turning aside, failure to, do which is contributory negligence.” See also Zettle v. Lutovsky, 72 N.D. 331, 7 N.W.2d 180 and cases cited. 27 A.L.R. Annotation VI, p. 509.

In Bagg v. Otter Tail Power Co., 70 N.D. 704, 297 N.W. 774, Par. 4 of the Syllabus by this court reads:

“Even though the defendant is shown to have been guilty of negligence, no recovery can be had by plaintiff when the injury is due to the negligence of both parties.” , ■

Even if defendant’s negligence caused'the first collision that does not relieve the plaintiff from his own negligence in failing to pay attention to the traffic ahead of'him,releasing his brakes and driving? 'within 12 feet of defendant’s car. Had plaintiff not driven ahead sp fast the second collision would not have happened. Clearly the negligence of the plaintiff in that respect contributed to the second collision. That negligence was the proximate cause of the second collision. Neither party.should recover. The case should be dismissed;


text:
    BRAATEN et al. v. BRENNA et al.
    No. 7386.
    Supreme Court of North Dakota.
    March 1, 1954.

      T. H. H. Thoresen, Grand Forks, for appellants.
    Wm. T. DePuy, Grafton^ for- respondents.
   SATHRE, Judge.

This action grew out of a controversy between residents and landowners in Americus Township, Grand Forks County and the Board of Drain Commissioners of Grand Forks County, relative to the construction of a proposed drain designated as Drain No. 27. The proceedings for establishing said drain were had under the provisions of Chapter 61-21 NDRC 1943 dealing with drains and drainage projects.

Section 61-2103 NDRC 1943 of said Chapter provides for the appointment by the board of county commissioners of a board of drain commissioners consisting of three members. ,

Section 61-2110 provides for filing with the drain board a petition by landowners for the construction of drains.

Section 61-2111 provides for examination by the board of the line of the proposed drain, designating a surveyor and establishing the commencement and terminus of the proposed drain.

Section 61-2114, 1953 Supp. NDRC 1943 provides for notice and hearing on the petition and is as follows:

“Upon the filing of the surveyor’s report provided for in section 61-2113, the board shall fix a date and public place for hearing objections to the petition. Such place for hearing shall be in the vicinity of the proposed drain and shall be convenient and accessible for the majority of the. landowners affected by such drain. At least ten days’ notice of such hearing shall be. given by causing a notice to be published at least once in the official newspaper of the county in which such proposed drain is located. In addition, a notice shall be sent by registered mail to the post office address, as. shown by the records of the register of deeds or county treasurer of the county of . each . owner of land which may be affected by the proposed drain. Notices of such hearing shall contain a copy of the petition, and a statement of the date of filing of the surveyor’s report and the date when the board will act upon the petition, and shall be signed by the members of the board or a majority thereof. All persons whose lands may be affected by any such drain may appear before the board and may express fully their opinions and offer evidence upon the matters pertaining thereto,”

Section 61-21151, 1953 Supp. NDRC 1943 defines voting right of powers of landowners and is as follows:

“In order that there may be’ a reasbnably fair relation between the amount of liability for assessments and the power of objecting to the establishment of a proposed drain, the voice or vote of affected landowners on the question of establishing the .drain-shall be arrived at-in the following, manner: .
“1. Every landowner shall have at least one vote or voice.
“2. In addition thereto each landowner shall have one additional voice or vote for each $100.00 or major fraction'thereof of assessment that his' land is subject toas' established by the board under the provisions of section 4 of this. Act (61-21131.)”

Section 61-21161 1953' Supp. NDRC 1943 provides for notice of' order’ establishing drain and of period'for appeal and is'as follows:

“Whenever the order shall be made establishing a. drain, the board shall immediately thereupon give notice to all affected landowners of such action, such notice to be given in- the same manner as the .notice of the hearing on the petition to establish-the drain, and such notice shall advise each landowner that his right to appeal to the district court from such order will expire in thirty days and the date of expiration of such right of appeal shall be' given-' Any affected landowner not given such notice shall have his right of appeal preserved for thirty days after, such notice is later given him, by registered mail, at his last known address or until the time of hearing on assessments, whichever shall come last.”

On March 22, 1951 there was presented to the Board of Drain Commissioners of Grand Forks County a petition signed by the requisite number of freeholders as required by Section 61-2110'NDRC 1943 for the construction of a drain extending from a point 1165.7 feet north- of the corner common to sections 3, 4, 9 and 10, in said Americus Township; thence south along the east sides of sections 4, 9, 16 and 21 terminating at the southeast'. corner of séction 21 in said Americus township, the total length thereof to be approximately 3.28 miles. The-project, also provided for the.closing of certain culverts and a-bridge through which the-waters would otherwise flow to the east of said proposed drain. The drain was duly surveyed ■ and engineering estimates prepared by engineers employed by the.Board of Drain Commissioners.

Twenty-six landowners in the vicinity of said proposed drain presented to and filed with the Board of Drain Commissioners protest against the establishing' of said drain. 'They alleged that the establishment of the drain is contrary 'to‘the'laws of the State of North Dakota in tliat it diverts the stream, of a natural' watercourse; that said drain if established according to the plans and specifications will cause .irreparable injury and- damages to property owners-.both within, the. drainage district and those not. subject to assessment; that the said drain is unnecessary and will be of very little, if any, benefit to anyone for the reason that there are sufficient ditches now if kept open and clean to take care of any normal water fall, and that no amount of drainage will take care of excess floods which occur only at very unusual times; that the cost of the construction of said drain is excessive and beyond the benefits to be derived; that the protestants will receive no benefit from said ditch of any consequence and that they are taxed without receiving any return therefor.

On June 18, 1951 a public hearing was had to permit obj ectors to the consttuction of said proposed drain to appear before the Board of Drain Comiriissioners and to' enter protests ■ and to show cause why said' drain should not be constructed. Notice of said hearing’was published in the' official newspaper of the county and notice by registered mail was sent to all affected parties as required by Section 61-2114, 1953 Supp. NDRC 1943. The affected parties as determined by the Board were those whose lands wóuld be assessed' for the cost of construction of the drain. Pursuant to notice given a meeting was held by the Board of Drain Commissioners on July 5/ 1951 at its office' in the city of Grand Forks, at 2 o’clock P.M. which meeting was recessed until July 9th,' 1951 at 2 o’clock P.M. at which meeting final tabulations were made of the objections to the establishment of said Drain No. 27 and the voting powers of landowners as defined by Section 61-21151, 1953 Supp. to NDRC 1943.

Applying the formula,set .forth in said section 61-21151 it was found that a total of 140 votes were cast on the question of establishing said proposed drain No.. 27, 89.of which votes were for and 51 votes were against establishing such drain.

The meeting of the Board of Drain Commissioners recessed to July 9th was again recessed until August 21, 1951 -at 2 o’clock P.M. Pursuant to recess the board reconvened in its office in the court house in the city of Grand Forks, North Dakota On August 21, 1951 at 2 o’clock P.M. Present at such recessed meeting were the members' of the Board of Drain Commissioners, namely ■ Ed Brenna, Sam Loyland ' and Henry Shane and Nick Ludowese, Clerk. At this meeting the Board reexamined all proceedings had to date • with regard to-the establishment of the proposed Drain No. 27. The Board then determined that there was sufficient cause for the making-of the petition for the proposed drain, and that it would not cost more than the amount, of the benefits to be derived therefrom. The Board thereupon made and entered the following order for the establishment of Drain No. 27, which is as follows:

“Whereas, the Board of Drainage. Commissioners :in and for the County of- Grand .Forks, State, of North. Dakota, did receive on the 22nd day of March, 1951, a petition signed by not less than six freeholders in Americus-Township requesting the construction of a legal, drain in that Township and...,
“Whereas, the route of the proposed', drain is as.. follows: Commencing-. . 1165.7-feet-north of-the corner common to .Sections-3, 4, 9 afid. 10, Township 149 North, Range 50 West, thence south along the east sides of Sections 4,-. 9, 16 and 21, terminating at-the southeast corner .of Section 21, Township- ■ 149 North, -Range ■ 50 West, the total length of the ditch to be approximately 3.28 miles and
“Whereas, the project is also to provide for the closing of -certain culverts- and openings through the road in order to properly function and
“Whereas, said drain has been duly surveyed and engineering estimates prepared, and
“Whereas, a public hearing for obr j ectors to the establishment of said drain was held-on June 18,1951, notice of:which was published in the official ■ newspaper and registered mail notifications s&t to all affected parties- and.
“Whéreas-, after the date of July 5,.’ 1951, which date-was Set by the Drainage Board as the -last for filing ■of written objections-to the-establishment of said drain, the objections filed were determined -by said Board to be in the minority.
“Now Therefore' te it Ordered and it is'hereby - so'ordered that in view of the foregoing the above, described drain is hereby established and shall • , henceforth be known, recorded and indexed as Grand Forks County Legal Drain No. 27.”

It was then ordered by the Board that notice be given to-all affected landowners of the making of the order establishing said drain, said notice to be given in the same manner as the notice of hearing on the petition to establish the dráin and that such notice shall advise each landowner that his right to appeal to the District Court from the order establishing the drain will expire in 30 days and the date of - expiration of such right of appeal was given as September 29, 1951 and the Clerk was directed to prepare and serve and publish such notices as provided by law.

Plaintiff’s exhibit C is a map showing the location of the proposed drain and the area that the petitioners contend it will serve. From this exhibit it appears that nine descriptions of land adjoining the east side of the proposed drain and ten descriptions of land adjoining the west side of the drain are owned or' controlled by parties who protested the construction of the drain.

Five of the twenty-six objectors, Oswald Braaten, Bessie Fladeland, Julia Johnson, Norris Hegg and E. H. Fladeland, the plaintiffs in this action, appealed to the District Court of Grand Forks County from the order of the Board of Drain Commissioners establishing said drain No. 27. The case was tried to the c.ourt without a jury before the Hon. John C. Pollock, Judge of said District Court.

In the District Court the plaintiffs contended that the establishment of said drain was contrary to the laws of the State of North Dakota in that it diverts the stream of a natural watercourse; that if the said drain is established according to the plans and specifications adopted by the Board it will cause irreparable injury and damages to property owners both within the drainage district and those not subject to assessment; that in conformity with the order of the Board dated May 31, 1951 a majority of affected landowners filed protest against the establishment of said drain, but that said Board wrongfully and illegally declared said objectors to be in the minority and ordered said drain established as Grand Forks County Legal Drain No. 27.

The physical facts as established by the undisputed evidence and the exhibits in the case are as follows:

The area to be served by the proposed drain No. 27 slopes gently to the north and east. There is a natural watercourse which has its inception in Traill County in the vicinity of the Village of Reynolds; from there it meanders northeasterly across a portion of Grand Forks County intercepting .the line of the proposed drain near the southeast corner of Section 16 in said Americus Township. At the point where this watercourse crosses the section line common to Sections 15 and 16 there is a small bridge, and a culvert through which said watercourse continues on into said section 15 for approximately 15 rods where it levels off and loses a distinct channel; it appears that an. artificial ditch had been constructed which tends to lead the water in a northeasterly direction where it enters an established drain on the east side of.said section 15 known as the Belmont Drain and flows east and empties into Sannes Coulee. The plans for construction of said proposed drain No. 27 include the closing of all east-west culverts and the bridge along the line of said drain and the diversion of water which otherwise would flow east and north, directly north into Sannes Coulee some three miles to the north of said bridge. Sannes Coulee has its origin in the western part of Traill County and enters Unicp Township in the southwestern part of Grand Forks County. From there it follows a natural water course known officially as Cole Creek but commonly known as Sannes Coulee. This natural watercourse enters Americus Township in Section 7 and meanders northeast through sections 7, 8, 4 and 3 and finally leaves Americus Township at the northwest corner of section 2 and from there runs straight north for six miles finally emptying into the Red River. This watercourse is a little more than 2 miles north of the watercourse to which we have referred as entering section IS. Drain No. 27 as designed will be 4 feet deep, 6 feet wide at the bottom, 32 feet wide at the top with a 3 to 1 side slope. The drain has a fall of 1 foot per 2000 feet -towards the north which would' rhake á totál fall between the point of beginning and the point where it enters Sannes Coulee of 6½ feet. The natural drop of the land between these two points is approximately 5 feet.

The trial in the district court proceeded on the theory that the burden of proof was on the defendants. At the opening of the trial the following discussion between counsel and court took: place:

“Mr. DePuy: Is it understood that we proceed with the appeal?
“The Court: Yes.
“Mr. DePuy: I presume this will be tried under the statute as a de novo, and the burden probably falls upon us to proceed.
“The Court: Yes. This is different from the ordinary appeal. As I understand it, it is a trial de novo.
“Mr. DePuy: Yes.
“Mr. Thoresen: That is right.”

The trial court found in favor of the defendants and made findings of fact that there was sufficient cause for making the petition to establish legal drain No. 27 in Americus Township, and that the proposed legal drain No. 27 will cost less than the amount of benefits derived therefrom, and upon such findings ordered 'judgment in favor of defendants for dismissal of plaintiffs’ appeal.

Judgment was entered accordingly and plaintiffs appealed and demanded a trial de novo in this court.

Appellants do not challenge the jurisdiction of the drain board or the regularity of the proceedings in establishing drain No. 27. It must be assumed therefore that the drain board acted upon a proper and sufficient petition and complied with the procedural requirements of law in making its order for the establishment of the proposed drain.

Appellants contend first that the findings of fact of the trial court were insufficient upon which to base its conclusions of law and order for judgment.

The case was tried to the court without a jury, and in. such cases appeals to the Supreme' Court are governed by section 28-2732 NDRC 1943 which provides among other things that:

“If the appellant shall specify in the statement that he desires to review the entire- case, all the evidence and proceedings shall be embodied in the statement. The supreme court shall try anew the questions of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and shall either affirm or modify the judgment or direct a new judgment to be entered in the district court. * * * In actions tried under the provisions of this section, failure of the court to make findings upon all the issues in the case shall not constitute a ground for granting a new trial or reversing the • judgment.”

In an appeal under the provisions of section 28-2732 this court is not limited to a consideration of whether the trial court’s findings of fact are sufficient. Appellants demanded a trial de novo in this court and under said section 28-2732 the supreme court must try the case anew upon .the entire record; and while the judgment of the trial court is entitled to appreciable weight, the supreme court may either affirm or modify the judgment or direct a new judgment to be entered in the district court: and if justice require it, may order a new trial of the action. Appellants’ contention is therefore without merit.

It is next contended that the court erred in holding that landowners whose lands were affected but not subject to assessment for the cost of construction of the proposed drain were not entitled to notice of the proceedings or a voice therein To this we cannot agree.

Section 61-21141, 1953 Supp. NDRC 1943 provides among other things,

“When the hearing provided for in section 61-2114 * * .* is held, the board shall first prepare a roster or roll of affected landowners and shall limit voting rights to such landowners. A record shall be made by the board of affected landowners present in person or by agent and such records shall be preserved in the minutes of the meeting. Affected landowners shall then be informed of the probable total cost of the project and their individual share of such costs. * * * ”

Section 61-21151 1953 ,Supp. NDRC 1943 defines the voting powers of landowners and provides that:

“each landowner shall have at least one vote, and in addition thereto each landowner shall have one additional vote for each $100.00 or major fraction thereof of assessment that his .land is subject to as established by the board.”

The language of these two sections clearly implies' that an affected landowner is one whose land is subject to assessment for his proportionate share of the cost of the construction of the proposed drain. '

The appellants -in this case are Oswald Braaten, Bessie Fladeland, Julia Johnson, Norris Hegg and E. H. Fladeland. .Their lands will be subject to assessment for the cost, of constructing the drain and they were given due notice of all of the proceedings as required by law. They appealed for themselves only. None of the landowners who it is claimed will be affected by the construction of this drain, but whose lands will not be , subject to assessment, are parties to this action.

Two landowners who claimed their lands would be adversely affected but not subject to assessment joined in the written protest against construction of the drain, but they were not parties to the appeal to the district court and are not parties here. The issues in this case involve only the rights of the plaintiffs and can have no application to parties who are not joined either as plaintiffs or defendants and who will not be adversely affected by the judgment.

It is next contended that the cost of construction of said drain is excessive and beyond the benefits to be derived and that there are sufficient ditches and drains at the présent time, if kept open, to take care of any normal flow of water and no amount of drainage will eliminate spring floods which occur at unusual times.

Respondents exhibit D, is the Survey Report and Cost Estimate of proposed Drain No. 27 prepared .by John Dillon, District Conservationist, and the items of the Cost Estimate are as , follows:

Grand Forks County Drain No. 27 Americus Township.

1. Excavation 41,480 cu. yds. ' @16‡ $ 6,636.80

2. Spoil bank leveling 3.23 mi. @400.00 1,292.00

3. Field inlets 300 cu. yds. @20‡ 60.00

4. Private drives installed concrete culverts 120 ft., @12.00 . .1,440.00

5. Right of Way

Section 4 • ■ 0.86 acres

Section 9 3.97 acres ‘

Section 16 3.98 acres , ' .

Section 21' '3.95 acres ' @100.00 1,276.00

Total 12.76 acres .$10,704.80

•' ' ' Section Line Culverts

600 ft.- concrete pipe installed @12.00 per foot $ '7,'200.00

Total Cost " $17,904.80

Respondents’ exhibit C, is .the minute book of the drain hoard containing a record of all of the proceedings had in connection with the establishing of Drain No. 27.

With reference to the water that would he diverted into the Sannes Coulee by Drain No. 27, Martin Lund, an engineer and a witness for respondents testified as follows:

“Q. Such water as ■ is intercepted and goes - north along the Belmont road goes where? . A. Runs into .'Sannes Coulee in the, Northeast; of Section 3.
“Q. In other words, it enters the same coulee as would the waters from the proposed drain but at a point approximately a mile and a half north and east? A. Yes, about that,
“Q. Was any study made of the ■capacity of the Sannes Coulee at the joint where the .proposed Drain No. 27 enters it? A. Yes, a survey was made and determined the possible capacity of the Sannes Coulee at the place this ■ drain would run in, and the .findings were as follows: Figures at this point where the ditch would come in the coulee calibrated that 110 square miles of drainage area comes in at this point where said proposed-drain would - come in as it is planned now, and that would include part of this area that is included in this ditch and the capacity required is 616 cubic feet per second at that particular point, and the capacity of the -coulee at that' point is 1545 cubic feet per second, showing that the- coulee is about do.uble the capacity ■ of what is coming in at that point.
“Q. That is, under • present conditions the coulee is double the capacity of the supply from the drainage? A. That is right. . . •
“Q. How much will be added to • that supply at the point w}iere Drain No. 27 is to enter .the coulee .by -the construction of Drain No. 27? A. 144 Cubic, feet per second.
, “Q. So after the drain is constructed the capacity will be increased -will be increased by 144 -C.F.S. .over" the 616 now required, is that- right? -A., 616. ...
“Q. In other words, your testimony is that after the construction of the drain the coulee will need a capacity of 760 C.F.S?' Á: Yesl
“Q. What is the capacity at the point where it comes in? A. 1545 cubic feet per second.”

Testifying further Mr. Lund stated that he had considerable experience with drainage problems in the eastern part of Grand Forks -County and drawing upon such experiences he stated that proposed Drain No. 27 had been planned and ■ engineered according to scientific methods and that it would be a desirable drain. As to the practicability of the drain he stated that its location was such that there were no obstructions that would hinder a natural drainage and that there were no farmstead trees to cause snow drifts and -other obstructions in the ditch and that it would keep open and permit free flow of the water.

With reference to the culverts and bridge near the, point of beginning of the proposed drain through which the water escapes towards the east and which will be closed by said drain, the engineer Martin Lund testified as follows:

“Q. You will remember that there has been some testimony this afternoon relative to certain culverts or a culvert situated in proximity to the end of the drain. ’ Do you remember that? A. Yes, I do.
“Q. Will you explain to the Court what the plans- call for relative to culverts at the south end of the drain ? A. There is a concrete arch culvert five feet by three and a half feet.
“Q. Where is that, culvert located ? A. At the southeast corner of section 21. And the culvert will be plugged to the effect that the spill bank will be placed in the east road ditch. And there is a concrete box culvert six feet by four feet which runs north and south from section 28 into section 21. And there is another concrete box culvert six by four feet, which runs from the northeast corner of section 28 into the northwest corner of section 27, and those two concrete box culverts, there is nothing supposed to be done to those.
“Q. The culverts on the south line of section '21 and 22, running east and west, will remain open, or on the north side of 28 and 27, whichever way you want to call it? A. Those are open, yes.
“Q. They will be open? A. Yes.
“Q. There is just one there going east and west? A. Between 28 and 27, yes.
“Q. They will remain open? A. Yes.
“Q. The one on the south side of 21 and 22, east and west, will be plugged? A. Yes, it will be plugged by the spoilbank.
“Q. And there are — there is a culvert running north and south on the west side of the corner of 28 and 21? Aj Yes.
“Q. That will remain open? A. That will remain open.”

The record presented in this court contains a large amount of testimony, twenty witnesses having testified in considerable detail. We have carefully examined the lengthy record. There are few facts in dispute, and it will serve no good purpose to rehearse the testimony in detail. The testimony of Martin Lund the engineer, explained fully the construction of the proposed drain, its practicability and its capacity. He.had calculated the capacity of Sannes Coulee into which the water would be carried by the drain. Under all ordinary circumstances the capacity of Sannes Coulee is nearly twice as great as the amount of water that would empty into it, including the additional water from the proposed drain. The testimony of the witnesses of the appellants is not convincing and we are of the opinion that the evidence is sufficient to warrant the drain board in establishing the drain. As we have pointed out it is not disputed that the proceedings were legally sufficient to authorize the drain board to take action thereon. The members of the board together with the engineer inspected the route of the drain, made a survey and prepared plats, profiles and specifications, determined the area that would be served, the affected landowners, the approximate cost and that the benefits that would be derived would be in excess of the cost. Boards of Drain Commissioners, are legally constituted bodies with authority to carry out the provisions of the drainage laws of the state.

Section 61-2111 NDRC 1943 provides that:

“Upon the presentation of a petition as provided in section 61-2110, the board, as soon as practicable, shall proceed to examine the line of the proposed drain, and if in its opinion it is necessary for the public good, it shall adopt a resolution to that effect and also shall adopt a resolution' designating a competent surveyor who shall survey the line thereof and establish the commencement and terminus and determine the route, width, length, and depth' thereof.”

The statute quoted vests the board with the power to establish drains, if in its judgment and discretion it is necessary for the public good.

The objectors, appellants, appealed to the district court from the order of the drain board establishing the drain and all of the evidence was heard and considered by the trial court.

“Section 61-2117 NDRC 1943 provides, that:

“Where such appeal is perfected, the district court upon the hearing may try and determine the question as to. whether, in the first instance, there was. • sufficient cause for making, the petition for the establishment of the drain, and whether .the proposed drain will cost more than the amount of the benefits to be derived . therefrom.”

The district court made findings that there was sufficient cause for making the petition to establish Drain .No. 27, and that said drain would cost less than the benefits to be derived therefrom. We have examined the evidence and the entire record and we are of the opinion that the findings of the trial court are correct.

Finally appellants contend that the establishment of the drain is contrary to the laws of this state in that it diverts the stréam of a natural watercourse.

Section 61-0106 NDRC 1943 defines watercourses as follows:

“A watercourse entitled to the protection of the law is constituted if there is a sufficient natural and accustomed flow of water to form and maintain a distinct and a defined channel. It is not essential that the supply of water should be continuous or from a perennial living source. It is enough if the flow arises periodically from natural causes and reaches a plainly defined channel of a permanent character.”

Section 61-0107 relates to obstruction of courses without authority of law.

“If any person, municipality, or corporation, without authority of law, willfully obstructs any ditch, drain, or watercourse, or diverts the water therein from its natural or artificial course, such person or corporation shall be liable to the party suffering injury from such obstruction or diversion for the full amount of the injury occasioned thereby, and in addition thereto, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars, or in lieu thereof, the offending party, if not a corporation, may be imprisoned in the county jail 'for a périod of not more ■than three months.”

Section 61-0102 provides that,

“Beneficial use shall be the basis, the measure, and the limit of the fight to the use of water. .All waters appropriated for; irrigation purposes shall be appurtenant to specified lands owned by the person claiming the right to use the water, so long as the water can be used beneficially thereon. Priority in time shall give the better right.”

Section 61-2101 NDRC 1943 provides:

“The word ‘drain’'shall include any natural watercourse opened, or proposed to be opened, and improved, for the purpose of drainage, and any artificial drains constructed for such purpose * * *.”

It will be observed that section 61-0107 prohibits the obstruction of a natural watercourse without authority of law; but section 61-2102 authorizes construction of watercourses, ditches and drains for the drainage of sloughs and lowlands whenever the same shall be conducive to the public health, convenience or welfare. The board of drain commissioners is made the tribunal by statute to administer the drainage laws of the state and to take such action with reference to the opening, and improvement of drains and natural watercourses as may be necessary to prevent flooding of lands within the district and may intercept the stream of a natural watercourse or divert the flow of its waters into other channels if in its judgment and discretion it is necessary for the public good.

The natural watercourse claimed by appellants to be illegally obstructed is the one referred to herein as crossing the proposed drain near the corner common to sections 15, 16, 21 and 22 at a point about a mile north of the point of beginning of said drain. At this point some of the water escapes through the bridge and culvert which will be closed by the proposed drain and spreads over the land in a northeasterly direction entering the Belmont drain and finally emptying into Sannes Coulee. If Drain iNo. 27 is constructed the waters of this natural watercourse will flow into Sannes Coulee as before but at a point about a mile.farther to the west.

As pointed out herein, the natural watercourse intercepted by Drain No. 27,' loses its identity as a definite stream after entering section 15. From there the water spreads over the terrain flowing east and north into Belmont drain, then north into Sannes Coulee.

The construction of Drain No. 27 will not increase the volume of water emptying into Sannes Coulee; but less water will be discharged into it through Belmont drain and more through Drain 27, but the total volume of water emptying into the coulee will remain the same. The rerouting of this watercourse by the drain board, acting within its jurisdiction cannot be held to be an unlawful obstruction of a natural watercourse.

We are of the opinion that under the-evidence and the powers conferred upon the board of drain commissioners by law the district court correctly affirmed the determination made by the board of drain, commissioners.

The judgment of the district court is affirmed.

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