28 S.D. 372 | S.D. | 1911
This action was instituted to restrain the defendants from enforcing and collecting certain assessments made against the land of plaintiff on account of a drainage ditch. Plaintiff is the owner of two quarter sections of land affected and drained by said ditch. Defendants are auditor, treasurer, board of county commissioners of Turner county, and the contractor who constructed said ditch. On the trial findings and judgment were in favor of defendants; and the plaintiff appeals, assigning various errors and reasons for the reversal of said judgment, among which assignments were the unconstitutionality of the law under which said ditch was constructed, and various irregularities alleged to exist in the procedure establishing such drainage ditch. As we view this case, it will only be necessary -to pass upon one question presented by the record.
The precise question here involved was passed upon in the recent case of Erickson v. Cass County, by the Supreme Court of North Dakota, 11 N. D. 494, 92 N. W. 841, which was an action to enjoin the collections of assessments levied in a drainage ditch proceeding. In that case the court said: “Another reason which lies at the very foundation of the relief sought compels the same conclusion. The plaintiffs are seeking the aid of a court of equity to defeat the collection of assessments imposed upon their lands, and to have the entire proceedings of the drainage board declared void and of no effect. The facts of this case are such as to require a denial of this relief on purely equitable grounds. It appears that plaintiffs signed the petition which induced the location and construction of the drain. The drain is 10 miles in length; and its construction necessarily covered a considerable period of time, and, as we have seen, involved the expenditure of large sums of money and the contracting of many obligations. The period of time covered and the character of the work being done make it necessary to assume that the plaintiffs, whose lands are adjacent to the ditch, were fully cognizant of all these fjicts. No steps of any kind were taken by the plaintiffs to arrest the progress of the work, or to challenge its legality in court, by notice to the board of contractors or otherwise. This action was not instituted until the drain had been fully completed, and after all the benefits accruing therefrom had been conferred. Under such circumstances, a court of equity will not stop to inquire into questions of regularity or irregularity. The cases are numerous, ánd the courts unanimous, we believe, in denying equitable relief on facts such as here represented. The cases als'o hold that, where one has re
Finding no error in the record, the judgment of the circuit court is affirmed.