144 N.W. 117 | S.D. | 1913
This is an action in equity wherein plaintiff sought to restrain a sale of .his real property in satisfaction of a special -assessment made thereon under the -provisions of chapter 134, Laws 1907, commonly known as the Drainage Act. Defendants demurred to the corn-plaint, alleging as ground for such demurrer that it did not state facts -sufficient to .constitute -a cause of action. The demurrer was sustained, and plaintiff appealed to-this court from the order sustaining same.
Appellant contends: That his property not being ‘ ‘agricultural lands,” and the law in question not authorizing an assessment against other property -than “agricultural • lands” (except highways and railroad rights of way), respondent board of commissioners acted wholly without jurisdiction in levying and returning an assessment for benefits against such lands; tha-t the law provides but one method for -the assessment of proportions of benefits, which method was not followed, so far as appellant’s
Inasmuch as appellant does not question the regularity of any of the proceedings in connection with the establishment of the drainage system, construction of the ditches, ascertainment of damages and benefits and the levy of the assessment (except as questioned under the contentions announced above), and it therefore stands conceded that proper petitions were presented and notices given to bring appellant’s land within the proposed drainage district and to authorize the inclusion of such lands when the respondent board ascertained the proportion of benefits accruing thereto, and assessed such lands for its share of the costs of establishing such 'drainage system, the jurisdiction of such board depended: First, upon whether such . board had the power given it to 'determine whether the land in- question was “agricultural land.” Second, if not given such power, then upon whether such land was in fact “agricultural.” The question of whether or not jurisdiction is given to the board to determine to what class a piece o-f land belongs, as to whether or not it is agricultural land, ■has not been- presented by either party upon this appeal and we express no views -thereon.
The order appealed from is -affirmed.