The object of this action is.to condemn a strip of land adjoining an established public drain in Pembina County, known as Drain No. 20. The county seeks to acquire a right-of-way and easement over said strip of land to the end that it may be used incident to the cleaning out and repairing of said Drain No. 20. The defendant Nord is the record-title owner of the strip of land sought to be condemned. He interposed a demurrer to the complaint on the grounds “that said plaintiff is without legal capacity, power and/or right to sue in said action or proceeding; that said complaint does not state facts sufficient to constitute a cause of action against the defendants or to justify the relief sought against them.” The trial court overruled the demurrer. Thereafter the defendant Nord made application for leave to answer the complaint. In' such application the defendant stated that the demurrer had been interposed in good faith. He further stated that defendant’s answer, among others, would contain allegations denying generally all facts alleged in the complaint except such as were specifically admitted therein; also that it would assert that no public need existed for the taking of the property. The trial court made an order denying the application for leave to answer and the defendant Nord has appealed.
In the complaint in this case it is alleged that the plaintiff is a public corporation duly created and existing under and by virtue of the laws of this state; that the defendant, Albert Nord-, is the record title owner of the premises; “that Drain No. 20 is an established public drain running in and through said Pembina County for the purpose of draining excess flood, surface and run-off waters therefrom and that the said Drain No. 20 is under the charge and jurisdiction of the Board of County Commissioners of said Pembina County, which board is charged with the mandatory duty to keep said drain open and in good re
The statutes of this state provide that the complaint in a condemnation action “must contain: 1. The name of the corporation, association commission, or person in chargé of the public use for which the property is sought, who must be styled plaintiff; 2. The names of all owners and claimants of the property, if known, or a statement that they are unknown, who must be styled defendants; 3. A statement of the right of the plaintiff ;•
“Before property can he taken it must appear: 1. That the use to which it is to he applied is a use authorized by law; 2. That the taking is necessary to such use; and 3. If already appropriated to some public use, that the public use to which it is to he applied is a more necessary public use.” NDRC 1943, 32-1505.
Under the laws of this state the issue of compensation for private property taken or damaged for public use must be' tried to a jury, unless a jury is waived. ND Const, Sec. 14; NDRC 1943, 32-1501; Bigelow et al. v. Draper et al.,
In the brief and oral argument on behalf of the defendant it is sought to draw in question the correctness of the order overruling the demurrer. This argument is predicated not so much on what is alleged in the complaint as upon certain instruments offered and received in evidence upon the argument of the demurrer, including a map of “the drainage area and the assessment area,” an instrument entitled “History of Drain No. 20,” a contract between the County Commissioners of Pembina County and a certain contractor for the performance of the work of cleaning and repairing the drain, an instrument in writing entitled “Memorandum of Construction of Contract” executed by the Board of County Commissioners and the contractor, and an alleged stipulation purporting to enumerate the legal-questions involved in the action, and specifying that if the court holds that the board of county .commissioners has. jurisdiction over the.
“The mode of amending pleadings recognized by the practice of this state is by rewriting the pleading, leaving out such allegations, and inserting such other allegations, as may be desired, so that all parts of the pleading shall be in one instrument, complete in itself.” Satterlund v. Beal,
As a general rule, the court in passing on a demurrer to the complaint may consider only the averments of the complaint. Schnoor v. Meinecke et al,
In American Jurisprudence it .is said: “The general theory is that a ’ demurrer reaches only those defects appearing on the face of the pleading demurred to. The court in ruling upon a demurrer has no right to go outside the pleadings for information and consider matters or evidence dehors the record, but must base its rulings wholly and entirely upon the language of the pleadings.” 41 Am Jur, Sec. 246, p. 465.
In Standard Encyclopedia of Procedure it is said: “As a general rule; only the pleading demurred to may be considered in passing on the demurrer. The court must assume that the facts are as alleged, and cannot assume the existence of any facts not
In Sehnoor v. Meinecke et al, supra, this Court said: “A demurrer reaches only those defects appearing on the face of the complaint demurred to and the court has no right to go outside the pleading for information dehors the record, but must base its ruling entirely upon the language of the pleading attacked. The only question is whether the pleading alleges a cause of action. 41 Am Jur, p. 465, Sec. 246; 49 CJ p. 420, See. 535.
“That extraneous matters on demurrer may not be considered is evident from the following sections of 1943 RC:
“ ‘28-0706. The defendant may demur to the complaint when it shall appear upon the face thereof,’ etc.
“ ‘28-0708. When any of the matters enumerated in Sec. 28-0706 do not appear upon the face of the complaint, the objection may be taken by answer.’ ”
Under the laws of this state an order overruling a demurrer is not appealable. Milde v. Leigh,
The laws of this state provide: “If a demurrer to any pleading is overruled and if it appears that the demurrer was interposed in good faith, the court, upon such terms as may be just, may allow the party interposing such demurrer to plead over.” NDRC1943, 28-0734.
“If a demurrer to any pleading is sustained, the court, upon such terms as may be just, may allow the party to amend such pleading. . . .” NDRC 1943, 28-0735. These statutory provisions are in harmony with the rule prevailing iii other states.
American Jurisprudence says: “Since a demurrer .does not admit the allegations of the pleading demurred to except'for
In Corpus Juris Secundum it is said: “After a demurrer is overruled, demurrant may, either by statute or rule of court, or, in the absence of statute or rule, by permission of the court in the exercise of its discretion, plead over. Ordinarily the court will allow demurrant to plead over, particularly where he asks leave in good faith to do so, although the court is not obliged to do so, and should, in its discretion, grant leave where no injury is given the other party. The discretion of the court must not be arbitrarily exercised.” 71 CJS Sec. 272, p. 567.
The application for leave to answer stated that the demurrer had been interposed in good faith. So far as the record- discloses there was no contention in the trial court that the demurrer had been interposed in bad faith and there is no such contention here. It has been the practice generally followed by the courts of this state to allow a defendant leave to interpose an answer, where his demurrer to the complaint has been overruled and the defendant in good faith asks leave to plead over, and it appears that the demurrer was interposed in good faith. This practice was followed generally when an order overruling a demurrer to the -complaint was appealable; there is added reason for doing so since the statute was changed so as to render an order overruling a demurrer nonappealable. See, Milde v. Leigh, supra.
We are all agreed that in this case the defendant’s application for leave to answer should have been granted and that the trial court erred in denying such application. The case is remanded to the district court with directions to grant the defendant leave