131 Minn. 43 | Minn. | 1915
Certiorari to review an order of the district court of Norman county establishing Judicial Ditch No. 51.
The main facts are as follows: The Wild Rice river has its source in Rice lake, in Clearwater county, and flows westwardly through the counties of Clearwater, Mahnomen and Norman, into the Red River of the North. Wild Rice river is more than 100 miles in length, has a basin of about 1,500 square miles, and is the main watercourse of the counties named. Along its headwaters the altitude is about 1,500 feet above sea level, and there are numerous lakes and swamps in this district, which in times of flood find their outlet in the river, as do great quantities of surface water. At the point in Norman county where the drainage project begins, the river is but 870 feet above sea level, a fall of 630 feet. West of this point the river falls but 50 feet in its course to the Red river. In consequence of these natural conditions water coming down the steep incline overflows the banks of the river and floods the country in the vicinity of Ada, mainly to the north, the river westerly of this point not having the capacity to carry off the water. The waters which thus spread over the country to the north do not again find their way into the Wild Rice, but finally flow into the Marsh river. The Marsh has its
In December, 1910, 23 freeholders of Norman county petitioned for a judicial ditch to improve the Wild Eice river. The ditch, or river improvement, called for by the petition was designated as Judicial Ditch No. 51, of the counties of Clearwater, Mahnomen and Norman, and was to commence near the source of the river and follow its course through the three counties to its junction with the Eed river. The improvement planned was really a straightening and deepening of the Wild Eice river throughout its entire length so as to give it capacity to carry off the water which, in times of high water, escaped over its banks and spread over the surrounding farming country to the north. The court appointed an engineer to make a survey of the proposed ditch, but no report was ever made and no further action taken on the petition. In February, 1911, an amended petition was filed; this was signed by 26 freeholders of Norman county, of which signers 13 were on the original petition. The amended petition called for a ditch starting in Norman county and running southwesterly for half a mile and thence straight west connecting with the Wild Eice river in the town of Hendrum. This is called the “prairie route.” As an alternative the petition called for a ditch commencing at the same starting point, and following the course of the Wild Eice river to its union with the Eed river; or, if the engineer finds that better results could be obtained or greater benefits accrue by selecting a different source, course or outlet, that he so report, and that the court establish the ditch as designated by the engineer. Upon application of petitioners and after due notice the court filed an order substituting the amended petition for the original one. There was a hearing upon the amended petition and an engineer was appointed to survey the ditch. In October, 1911, the engineer filed a report recommending an improvement of the Wild Eice river by deepening its channel and
The relators testify, it is true, that their lands,, some of which the proposed ditch crosses, or passes near, and some of which are in the flat country between the two rivers, will not be drained by the improvement ordered, but on the contrary will, be flooded because of the incapacity of the Marsh river to take care of the water thus diverted from the Wild Eice, in addition to its natural flow and the water from several ditches that already empty into it. But the evidence of the engineers is to the contrary, and is ample to sustain the decision of the trial court that the ditch established will furnish all the relief that would have come from either the proposed ditch across the prairie or that following the course of the Wild Eice. Under the statute, the case of State v. Watts, and the facts here as we understand them, our conclusion is that there was no such departure from the scheme outlined by the amended petition as to render the order void.
Prior to the adoption of Laws 1909, p. 565, c. 469, it is clear that where a proposed ditch was wholly within a single county and would probably not result in benefit or damages to lands in an adjoining county, the board of county commissioners had exclusive jurisdiction. It was only where the proposed ditch extended into more than, one county, or where it would probably benefit or damage lands in an adjoining county, that any jurisdiction was given to the district judge or court. But Laws 1909, p. 565, c. 469, seems to have given the district court concurrent jurisdiction with the board of county commissioners in proceedings for ditches wholly within a single county. A comparison of the prior law with the subsequent is instructive.
Laws 1905, p. 303, c. 230, § 1, give the board of county commissioners of any county power to cause to be constructed any ditch, etc., within said county. Then follow the sections as to county ditches. Section 27 [p. 328] of the act concerns judicial ditches, and is as follows:
“Whenever it is desired to construct a ditch extending into or through part or the whole of more than one county, or if entirely within one county, the ditch is to be so located that it will probably result in benefit or damage, or both, to lands in an adjoining county or counties, then in either of such cases, the petition required by section three of this act shall be addressed and presented to the judge of the district court of the district in which any one of such counties is situated.”
By chapter 469, p. 565, Laws 1909, the 1905 law was amended. Section 1 was amended to read as follows:
“The county board of the several counties of this state within their respective counties, and the judges of the district courts of this state, ah all have the power, when the conditions stated in the third section of this act aTe found to exist, tó cause to be constructed as hereinafter provided any ditch,” etc.
Section 27 was amended [p. 578] so as to read as follows:
*50 “Before any district judge shall establish any ditch, drain, water course or other .construction named in section 1 of this chapter, there shall be presented to a judge of the district court in the judicial district in which any part of the proposed ditch is to be located, a petition such as is required by section 3, of chapter 230, of the General Laws of Minnesota for the year 1905, as amended by this act.”
The third section of the act referred to both in section 1, and in section 27, provided for the petition, bond, notice of hearing, survey, etc.
It is plain from this comparison of the statute as it was before 1909, with the act of 1909, which has been in force ever since, that the legislature intended to give the district court, or the district judge, jurisdiction over drainage proceedings, although the proposed improvement was wholly within one county.
The sections quoted indicate this intention clearly, and this conclusion is strengthened by the provision requiring the petition to be filed with the clerk of the district court of the county wherein said ditch or any part thereof is to be located, and the provision requiring that the bond shall be made payable to the county or counties, as the case may he. [G. S. 1913, § 5553.] The statute as amended must be construed as giving the court jurisdiction of ditch proceedings, although the proposed ditch is wholly within a single county.
It is urged that this construction makes the statute unconstitutional as conferring upon the courts legislative and administrative powers. This question is disposed of adversely to relators by the ease of State v. Crosby, 92 Minn. 176, 99 N. W. 636. While in that case the law held valid only attempted to confer jurisdiction upon the courts where the ditch extended into two or more counties, the opinion is not based upon this feature and could not logically be. It can hardly be argued that the exercise of judicial functions is involved where the ditch extends into more than one county, and that there is nothing judicial in the proceedings when the ditch lies wholly within one county. As said by the present Chief Justice in the Crosby case:
“The question of the propriety or necessity of public ditches to drain marshy or overflowed lands is one of legislative character. The condemnation of land through which such ditches may be constructed, the assessment of damages, and the determination of the legal rights of
Order affirmed.