119 Minn. 14 | Minn. | 1912
Action to vacate and set aside a ditch assessment against the plaintiff’s lands, situated in Lac qui Parle county, and to enjoin the county auditor from filing a lien statement, and, in case such statement is softhed before the determination of the action, to remove the cloud created thereby, and for general relief. Prom ah order sustaining a general demurrer to the complaint, the plaintiff appeals.
The complaint alleges the due establishment of the ditch by the-board of county commissioners on November 19, 1909; that three-forties of land then owned by the plaintiff were affected thereby; the construction of the ditch so far as it affects the plaintiff’s'-lands-referred to; and the execution by the county auditor of a lien statement against the said lands, as provided by law. No complaint whatever is made of any irregularity or omission in the ditch proceedings ; the sum and substance of the cause of action relied on being that the ditch fails to furnish the drainage contemplated and intended-at the time of the making of the assessments, and that such failure of utility and consequent alleged wrongful assessment is not the result of a mere mis judgment of the assessing power, but that the error in the-assessment is so gross that it must have resulted from a demonstrable-mistake, and that hence the plaintiff is entitled to the relief demanded.. In other words, it is variously alleged, with respect to the said land owned by the plaintiff and -affected by and assessed for the drain,, that such drain does not furnish drainage for the surface water upon the said lands, and is not low enough to afford any subdrainage thereto ; that the branch drains are too small to carry off all the water dur
1. Probably, aside from the allegation of multiplicity of suits, the plaintiff’s remedy, if any he has, is under R. L. 1905, § 919. See Schumacher v. Board of Commrs. of Wright County, 97 Minn. 74, 105 N. W. 1125; State v. Johnson, 111 Minn. 255, 126 N. W. 1074; Lindbergh v. County of Morrison, 116 Minn. 504, 134 N. W. 126. But since it would be, in a sense, futthe to deny the right of the plaintiff to equitable relief and send him back to another action, and also in view of the fact that a general demurrer only was interposed, we will assume, without deciding, that the plaintiff has a standing to ask for equitable relief, if entitled to any relief at all, and. will determine the case upon its ultimate merits, without reference to the form of the remedy.
The question then is: JDoes the complaint state grounds for either equitable or legal relief, or for any relief in any form of action or proceeding known to our law ?
Clearly the plaintiff stands in no better position to object successfully to this entire tax in this action than he would, were he objecting to the entry of judgment on the first instalment thereof under section 919 of the tax law. Recognizing, then, on the authority of State v. Johnson, supra, that the said section 919 applies to ditch assessments,
The ditch proceedings were in rem (McMillan v. Board of Commrs. of Freeborn County, 93 Minn. 16, 100 N. W. 384), were concededly regular, and there was full and complete jurisdiction. The plaintiff, in short, seeks merely a review of those very matters which were,, of necessity, determined by the county board in the proceedings to establish the ditch, and upon which the plaintiff could and would have been heard, had he seen fit to interpose his objections therein; and, though he insists that he did not discover his grounds of complaint until after the assessments had been made, it seems to us clear that the objections are not of a kind that can be made after the county has incurred the expense of constructing the ditch, for the objections are grounded upon matters which were necessarily involved in the original petition, the report of the viewers, and the order establishing the ditch. If matters of this kind were open to question under section 919, the result would be that the merits of ditch assessments would have to be retried every time any landowner saw fit to object to an application for judgment upon an assessment on the ground that the ditch did not perform the function anticipated, and we do not deem this to be the law. Thompson v. County of Polk, 38 Minn. 130, 36 N. W. 267; Slingerland v. Conn. 113 Minn. 214, 129 N. W. 376; Dalberg v. Lundgren, 118 Minn. 219, 136 N. W. 742. To permit a party to make this defense to a tax imposed to defray the expenses of a ditch under circumstances here alleged, would oftenj as stated in State v. Johnson, supra, “result in transferring the burden from those who received all the benefit to those who received none.”
The allegations of the complaint show a mere error of judgment, if it may be said that any mistake at all is alleged, and such is not,
Having determined that, so far as shown by the allegations of the complaint, there was no such mistake of fact in making the assessment here involved, and no fraud, nor any ground of complaint which would be available to the plaintiff in any proceedings of whatsoever nature, the plaintiff’s allegations relative to his reasons for not appealing are rendered immaterial. The time for taking an appeal cannot be extended. 1 Dunnell, Minn. Dig. § 318.
Order affirmed.