187 N.W. 537 | S.D. | 1922
A petition for the establishment of a drainage ditch (including one lateral) in the counties of Brown and Marshall was filed in both counties pursuant to section 26, c. 134, Laws 1907, in November, 1916. The line of drainage was stated
It is objected that the petitions were.insufficient in that, while the petitioners said they were owners of land likely to be affected by the proposed drainage, they did not identify any particular tract of land as the land of any particular owner. We think the petitions were, sufficient in this respect. Moreover, we •do not find that 'this question was • raised before the trial court, and it could1 not be raised for the first time on appeal.
Section 26, c. 134, Laws 1907, as amended 'by chapter 208, Laws 1917, thus defines the powers of the court:
“Said matters shall be tried thereon and determined as an original action, and upon such determination the county commissioners of the several ■counties shall proceed in the matter of such drainage in accordance therewith.”
We think the above provision necessarily contemplates the establishment of a ditch by the court and that the court had the same powers as the joint boards had when the matter was last before them. Hardy v. McKinney, 107 Ind. 364, 8 N. E. 232.
Neither did the court err in establishing the ditch solely as a Brown county ditch, when the portion thereof: affecting Marshall county had been eliminated.
“If the several boards are unable to agree upon the 'establishment of drainage * * * any person interested may deem the petition denied and may bring the determination thereof into the circuit court of the county in which his own land lies by giving notice to the boards of county commissioners of his intention and requesting said boards or one of them to transmit its records to the clerk of the circuit court of said county.”
We think this matter was properly before the circuit court for determination.
The judgment and order denying new trial are affirmed.