*1 July may not been sustained Feist Andrew which contributing his believe rather proximate death. ¥e cause to parties concerning question which should one that the proofs. opportunity we given short, further submit require justice case ends are the view compensation predicated claim Lena Feist should be remanded Work- of Andrew Feist the death Compensation with directions that the Bureau Bureau men’s question hearings upon whether the disease further conduct July 1946 and from which he contracted Feist Andrew which proximate contributing cause to was was later suffered hemorrhage caused his death on October 23, the cerebral 1947; J., Morris, JJ., concur. C. Burke Crimson, Nuessle,
[File 7193] No. Respondent, COUNTY, NORTH REX BRACE, STEELE Municipal Corporation, Appellant. DAKOTA, 672) NW2d
(42 *2 Opinion filed March Rehearing May 1950. denied Attorney Wallace Warner, E. General, Sathre, O. P. G. E. Attorneys Brace, Assistant General, and Albert Bakken, C. Attorney County, appellant. State’s of Steele for .
Boy respondent. Bedetske, K. plaintiff: brought enjoin J. The this action to
Christianson, obstructing waterway defendant a natural thereby flooding injuring drain and certain lands owned plaintiff. complained The obstruction of of consisted the flow- graded obstructed it is certain flooding' lands owned of resulted in water, plaintiff. May 6,1949. dated instituted summons
The action was the same complaint verified the action was sup- day day an affidavit made that same and on injunction. port application Thereafter of an complaint, plaintiff’s affidavit verified summons, support judge district court the said were submitted judge application and the is- an for a citing the said to show cause before order the defendant sued an place 1949, at order on o’clock agents in such June court at stated day, why servants, defendant, officers, P.M. its enjoined pendency employees *3 not and should be obstruct- court from the action until the1further order drainway ing in watercourse and mentioned natural complaint why maintained located and and obstruction so' employees by agents, and defendant, said officers, servants, its drainway on and across and should said natural watercourse court; of the not be therefrom'until the further order removed .provided that and, which order show cause un- said to further defendant, officers, til its the further of the court the order enjoined agents, employees from servants, be restrained any way obstructing in free of water said water- any and main- course and that obstruction there constructed by agents, and em- officers, servants, tained its defendant, said ployees be from said watercourse and drain. removed forthwith complaint, affidavit, and order show cause'
The summons, upon county by upon duly the defendant service were served county commissioners chairman the board of interposed general May a demur- 13, 1949. The defendant upon complaint, the at- which demurrer was served rer to the torney place May time 1949. At the for the by appeared specified cause the in the order to show appeared made its counsel and and the defendant his counsel return cause. set the order show Such a return to filed prayed objections order to show cause and certain forth vacated and set aside. order to cause be show attorneys return verified one tbe for the was defendant. following the trial court made the 20, 1949, On October memo- randum decision:
“This matter comes before court on an order to show why temporary restraining cause a order issued court on -May during pendency 9th, should continued of the action. appears plaintiff’s complaint
“It from and affidavit originally obstructing .the order was issued that defendant is draining (cid:127)a natural Avatercourse a considerable section of land lying immediately south of road built and maintained defendant. required post security upon
“Plaintiff Avasnot the issuance post per- should, order. Plaintiff therefore, sonal bond with the clerk of this court the sum of one thou- (1,000) indemnify provided sand dollars to the defendant as section 32-0605 NDRC 1943.
“Upon being posted such bond will make its order continuing temporary restraining pend- order ency restraining of this action its defendant, officers,,servants, agents employees obstructing manner the nat- drainway upon, ural Avatercourseand over, located and across plaintiff, complaint, lands of the described being extending diagonally Avatercourseand drain located and Township Range across of Section North, Wl *4 County, in northeasterly "West, Steele North in Dakota, a di- extending portion rection and also the across northwest the against east maintaining half of said section, and obstruc- tion drainway, in, and across said natural watercourse and and that agents said defendant, officers, its and servants, em- ployees enjoined any way be obstructing and restrained in the natural and free in water said described water- course.
“That the above entitled action disposed of by trial -of the merits at the first term of court in said county folloAving the is- suance of this order.” day
On that same the granting trial court made an order temporary injunction. Such order recited that the matter specified the time court at in before the came on be-heard parties appeared re- their cause, the order show being fully attorneys spective in advised and the court papers having premises the and in files, record, the and read good appearing therefor” the “and cause ordered action, pendency the of the action or until court shall other- temporary injunction theretofore made wise order the May bearing in full force and 9, 1949, date be continued filing plaintiff’s district court the clerk effect with prescribed filed. The de- bond, was thereafter which bond court from the order made October fendant has to this n injunction. granting the 20,1949, plaintiff complained and which of which obstruction obstructed the natural and free drain- he blocked and drainway age the same as flows of water watercourse plaintiff’s caused lands to be flooded land and across damaged highway grade aof consisted certain constructed highway The contention was that the watercourse. across obstructed and blocked the watercourse drain- as constructed way plaintiff’s lands, to accumulate and flood caused water adequate bridges been constructed and that no culverts had drainway. In in the watercourse and so that water could flow against brought Brace action former State (State 330) seeking to condemn Brace, ND 36 NW2d a Wild not in this action for all the 'lands involved much'if Refuge highway the culverts referred Life .this-court highway provided passage for the of the water under follows: along line ex-
“A was later constructed section tending 12. A eastward from northeast corner of Section through grade marshy across a low swale was filled filling drainage dug. in and ditch had been resulted This grade blocking above the ditch. were installed in Culverts ground the bottom of the and some distance above level only obstructing grade. resulted flow This drainage extent the over-flow of ditch but also to some natural of Puller’s Lake across the lowland to the northeast.” out water *5 appellant’s appeal concluding paragraph brief this In the it is said: past summer, have,
“The commissioners grade plain- along north side of reconstructed adequate carry installed land and had culverts tiff’s complaint, drainage plaintiff’s watercourse described culverts at least as low as the bottom of natural such are drainage of the herein. area involved purpose by injunc-
“Therefore, there is no to be subserved Consequently, urge tion involved herein. defendants that the appealed improperly order from was made and such order aside.” should vacated and set respondent’s appeal brief on this reference is made to the appellant’s
foregoing it statement brief and if said that adequate carry culverts been constructed which are appeal the water that “then this is moot” and “there remains question no court to then, this determine as there has been complete compliance full with the defendant the Order of the Court and the obstruction has been It is, removed. there- that submitted should be fore, questions dismissed because the questions involved herein are moot. If, however, such are now then order of the District moot, Court from should be so that affirmed there will be no recurrence of previously condition existed lands acts of the defendant.” argument parties repre-
theOn oral were represented sented the same counsel who them in the court argument respondent below on such counsel for the stated plaintiff, his client, has informed him that the defend- adequate ant has constructed culverts obstruction formerly existing prevented in the watercourse and which drainage free water and has been removed and purpose sought that temporary be served the action and the
injunetional accomplished. order been has he But injunetional suggested that the order should be continued in prevent force so as to recurrence of acts the defendant which would result in obstruction watercourse. appears, complied therefore,
It defendant has with
282 plain- which appealed that the conditions
the order
ap-
for his
constituted
basis
and which
existed,
tiff
plication
injunctional
exist.
In
have ceased to
order,
for the
injunction-may
injunctive
be
relief
an action for
plaintiff-
the com-
granted
defendant from
restrain the
injunctive
against
act
which
some
or continuance
mission
sought pending
the case on
final determination of
relief is
necessary.to protect
rights
it is
merits, when
the
plaintiff
litigation.
32-0602; Burton
1943,
NDR.C
Sec.
the reasons
283 L 387; ed Heitmuller Stokes, v. 256 US 65 L ed 991. compliance generally judgment with And order neces sitates a dismissal of the therefrom. CJ Sec Heinemeyer County, supra. 2388; 1955; CJS et al. Mercer v. open frankly Under the facts as counsel in conceded (California supra) San the defendant has Co., Pablo etc. complied fully provisions with the from, of the order *7 injunction granting temporary the reasons for the have ceased continuing exist, to for there exists valid reason force no temporary injunction sought the thereby the as relief to be obtained anticipate
has been obtained there no reason to is prohibited sought that the acts which the to have will appeal be renewed. moot it While has become does not necessarily sug that it been follow should dismissed as has gested by .plaintiff’s counsel. While in the circumstances there appeal yet are no issues merits of to there decide, to “remains be determined our what order should be with refer ence” to the order from, “our conclusion and while subject considering such must be reached all without at appeal liberty merits” of the “we are at make such order justice, as ‘most consonant to view conditions and ” Hamburg-Amerikanische circumstances of the ease.’ U. S. v. supra; supra. Co., Heitmuller Stokes, v. A dismissal appeal temporary would the order affirm and continue iii- .the junction although in force under the admitted facts reasons granting longer for it have it ceased exist can n'o serve purpose. useful In the circumstances we case think appeal should hot be dismissed but cause should be remanded to the trial court with directions to dissolve the' proceedings and dismiss the instituted County the order to show cause. et Cullen al. v. Ellis Levee Imp. Dist. 310; No. Tex CA, 77 SW2d Simmons Board ND Hamburg-Amer Education, 61 NW 700; U. S. v. supra; supra; Ency., ikanische Co., Heitmuller v. Stokes, Pl. p Pr., & Note 3.
It is, therefore, ordered that the ease be remanded to the temporary injunc- district court with directions to dissolve the which, appeal taken and dismiss the was tional order from proceedings cause. the order to show instituted concur. J«J., C. J., Morris, Grimson, Burke Nuessle, Rehearing Petition for On rehearing. petitioned Plaintiff has J. Christianson, rehearing petition reads follows: The first sentence opinion court in the above entitled rendered this “In the proceeding, -for the basis suit assumed brought longer therefore exists and re- no with instructions to dis- the case to District Court manded This court did not action.” Plaintiff is error. miss the main the district court with instructions to remand the case to dis- miss the main action. continuing appeal order was from an in opinion
junction rendered court was limited purpose had been taken. The the order *8 preserve injunction status-quo is the of to of a protect rights plain subject of matter of suit upon “pending of the case final determination the merits.” tiff 257; ND et al., 149, 13 100 NW Giliman al. et Burton v. Walker City Talley 144; Ia 119 Horn v. 718, et 140 NW Van of al., v. 1313, 193; 192 186 NW State v. Wadhams al., et Ia Moines Des 1121, LRA 607; 1943, NDRC NW NS 58, 149Wis Co., Oil 32-0602, 32-0603. Secs. purport appeal opinion did not make on this or former
The any of of merits cause of determination make to implication “carry any of determination did it of nor action adjudi affecting It “not an any question the merits.” was question not conclusive merits, and is of cation subsequent proceedings in the or affecting suit the merits involving Roller v. same cause of action.” another suit Murray, LRA1915F Ann Cas 172, 984, 71 W 76 SE Va Fidelity 255, 30 54 Idaho 1914B & G. 1139; Co., Beech v. U. S. recognized,” said the Su 264. “It is Pac2d 92 ALR well supra), preme (State Co., v. Wadhams Oil of Court Wisconsin (temporary injunctions) such have been used and “that orders rights 'quo parties, employed of to maintain the status protect against irreparable injuries persons in the and thus object legal preserve property rights person’s is or law. Its to adjudication controversy, until a final reached controversy; legal merits of-the but it not, sense, does con rights parties.” clude the of the opinion appeal rendered this case relates to the and to that No alone. determination
is made the merits of the main issues such action, and in- Talley action remain supra; al., undetermined. See Giliman et al. v. et supra; Murray, State v. Wadhams Oil Roller Co., v. supra. See, also ex Court, State rel. Lemke District 49 ND concluding paragraph 27, 45, 186 NW 388. In the opinion say: we “It is therefore that the case ordered be re manded to the district court with directions dissolve the temporary injunctional order from was taken proceedings and dismiss the instituted the order to show cause.” opinion reference Is made statements made re-
spondent’s argument, relating counsel oral on the to the then steps status of the watercourse and to taken the defendant to prevented remove the obstruction which the claimed respect the free of water therein. With to such state- petition rehearing ments it is said in the that it is the dis- plaintiff’s' tinct recollection “that counsel at time argument appeal, it was stated the court attorney had his that a culvert advised had been con- highway during structed on the the summer fall of 1949 temporary restraining after the issuance of the order herein, *9 and that as a result the of of culvert, construction said the shal- low waters of so-called had Puller’s Lake been drained from the plaintiff.” of lands the That “it was the not intention of the undersigned convey impression to the to the that the cul- adequate permit flowage vert installed was to the free adequacy water in all the drain at times.” That “the of the cul- permit vert to free at all times could and was not by plaintiff, plaintiff admitted the the because had not an had inadequacy adequacy of the drain- opportunity the observe drainage except by the age to the of provided as the culvert spring- problem of in the lake. troublesome shallow waters heavy resulting drainage rains from the of water runoffs and rehearing- petition it yet In the are still undetermined.” as appeal hearing- of the before of the time of is “As also said: water admitted: —The and court, one fact was determined plaintiff fall was and as of last summer the lands of will handle “whether or not the culvert off.” But drained resulting spring- drainage rains another runoffs and is full question.” entirely different plaintiff complaint of is owner
In the it is County in the com- is described of land Steele which section complaint origin plaint. According plaintiff’s and in the watercourse of obstruction nature complains year “That on about the was as follows: all public highway along-the defendant constructed a above named highway an runs in section, line of and said North section said highway That so constructed East and West direction. said was drainway de- natural and -watercourse as above as to cross to block obstruct and was constructed so as and scribed, drainage and and of water said watercourse natural free drainage drainway, particularly the free of and and natural drainway the same flows across in watercourse and as water highway plaintiff’s That said land above described. said above by defendant herein set was constructed said as described .so highway being- located maintained so forth, said is still That a result of construction said said defendant. maintenance . . . and reason its continued flowing in said “has defendant” water watercourse said highway” dammed been caused and blocked said portions of watercourse flood overflow natural banks land. respondent’s brief on this it is said: respondent only “It the contention of is purpose of the action is to eliminate an obstruction a water- lying being- the defendant’s said land, course watercourse the form maintained defendant. This obstruction *10 public highway boundary along of a constructed the north of highway land, which said does not installed adequate drainage therein facilities in the form of culverts. Obviously, under circumstances, obstruction can re- be provide moved the mere installation of culverts so as to proper drainage of the water in the watercourse. This does complete highway not necessitate the elimination of the or the highway improvement. page As a matter of fact on the last of appellant’s given brief, the information is to this court that adequate drainage provided such has been for in the form of complete highway culverts without the elimination of the or highway improvement.” merely The order pro- that was issued in case was not hibitory, mandatory. enjoined it was also It restrained and county, agents, the defendant its officers, servants, and em- ployees, until any way the further order of the from court, in' obstructing the natural and free water in the water- provided course and further obstruction now con- structed and County, maintained the defendant Steele its. removed, agents, and.employees, forthwith, officers, servants, from said watercourse and drain.
We have complaint this situation, therefore, as shown respondent’s and the petition statements brief and for re- hearing. The plain- obstruction in the watercourse which the sought county enjoined tiff to have the defendant main- from taining compelled public to remove consisted county constructed the defendant about "1935. “The- obstruction could be removed the mere installation cul- provide proper drainage so verts as to for the of water in the- “During watercourse.” the summer or fall of 1939 after the temporary restraining issuance of the order herein” the de- fendant constructed a culvert; “that as a result of the construction of said culvert the shallow waters of so-called plaintiff,”" Fuller’s Lake had been drained lands of the this, hearing that “as of the time of the before one fact court, was determined and admitted: —The water drained, the lands of the last summer and fall was wholly off.” These facts and circumstances are with. accord *11 opinion in the conclusion reached rendered in case this complied the defendant has with the order from and requiring exist conditions the issuance injunction temporary appeal'has of a to be and the ceased n become moot; that there is no reasonable likelihood that-there part act will be further on the of the defendant pendency obstruct watercourse of the action, Shepherd Broadcasting Rosenthal et al. Service, Inc., Mass 12 NE2d 114 ALR view condi- of. and circumstances of the case the tions should not be dismissed but the case should be remanded to the trial court with directions to dissolve and dis- proceedings instituted the order to miss show cause. pointed we are out, As has been concerned alone with.the tem- injunction, porary opinion what in the was said rendered opinión only case what has been said in this relate injunction. main action is not before us and express opinion respect no with we merits of such action may any question that trial be involved and determi- Rehearing denied. nation thereof. J., Morris, JJ., C. concur. Burke G-rimson,
Nuessle,