137 Minn. 265 | Minn. | 1917
Bespondent moves to dismiss the writ of certiorari heretofore issued herein upon the following among other grounds, namely: (1) That the writ was improperly directed, and fails to name the parties interested as respondents; (2) that no person indorsed the writ as surety for costs as required by section 8315, G. S. 1913, and (3) that a copy of the order allowing the writ was not served upon respondent.
The points made do not require discussion. The writ was directed to “Hon. L. S. Nelson, as judge of the 13th Judicial District of Minnesota.” Counsel contends that this was fatal error, for the reason that the writ should have been directed to the “District Court of the 13th Judicial District.” The contention is not sustained. The order allowing the writ directed that the petitioner file a bond for costs, to be approved by a justice of the court. The order in this respect was complied with. The bond answers every .purpose of the statute. The writ was served upon respondent, and also upon the attorney for the petitioners in the ditch proceeding sought to be reviewed, and service thereof was admitted. It is not necessary that all such petitioners, in a case of this kind, be named as respondents. Service upon their attorney was sufficient notice to them. Nor was it necessary to serve a copy of the order allowing the writ.
The other points possess no greater merit than those mentioned.
The notice to dismiss is denied.
Certiorari to review the order of the district court of Pipestone county laying out and establishing a drainage ditch in and through that county.
The assignments of error present numerous questions, the greater part of which are unimportant and do not require special mention. They present no question of a serious nature, and will be passed with the remark that no reasons are thereby set forth justifying a reversal. The contentions upon which relators mainly rely will be considered in their order.
The facts in a general way are as follows: The petition for the ditch was in proper form and signed by the requisite number of property owners. It was duly presented to the court and a notice of hearing thereon was given as required by law. Upon such hearing an engineer and viewers were appointed, who thereafter in due season made a report of the survey of the proposed drain, and of the probable cost thereof, together with the names of persons whose land would be assessed for benefits, and other detailed matters as required by the drainage statute. The petition definitely described the proposed ditch, the place of commencement and ending, prayed for the establishment of the same with such branches, laterals and extensions as might be found necessary to effect the purposes of the drain. As petitioned for there was one main ditch with a branch designated as branch A; the total length of which was about 11 miles. The report of the engineer followed in a general way the route proposed by the petition, commencing the main ditch substantially at the point designated by the petition and ending at the point named therein. Branch A was extended a distance of about 7 miles, but aside from that extension conformed, with some unimportant variations, substantially with the description given in the petition. The reason for the extension of branch A was that the project would, in the opinion of the engineer, result in a failure unless the territory adjacent to the extension was included therein. In other words, the survey was made to embrace all land wifhin the particular drainage basin, on the theory that, if not so extended, the lands not
The case cannot in point of its substantial facts be distinguished from the case of State v. Watts, 116 Minn. 326, 133 N. W. 971. In that case there was a departure of about 7 miles from the point of commencement of the proposed ditch as stated in the petition, and a Hire departure from the point of terminus, and both were made by the engineer on the ground that they were necessary to a complete drainage project. In the case at bar there was an extension of the branch A a distance of about 7 miles, and this was recommended by the engineer for the same reasons as were acted upon in the Watts cáse. All other lateral or branch ditches in this ease were those called for by the petition, as “such other branches, laterals and spurs as in the opinion of the engineer * * * may be necessary to give owners of lands likely to be assessed herein the full benefit of the drain and drainage herein mentioned,” and not therefore' a departure from the petition, but a compliance therewith. The facts in the two eases being substantially the same we follow the rule applied in the Watts case. See also State v. District Court of Norman County, 131 Minn. 43, 154 N. W. 617; Rooney v. County of Stearns, 130 Minn. 176, 153 N. W. 858. The act of the engineer in extending the ditch as stated was authorized by statute, and was for the sole purpose of effecting a better drainage system than could be obtained by following the petition. And, as stated, if better results could thereby be obtained, the extension was within his authority.
We conclude from the section, taken in its entirety, that the legislature contemplated that an adjournment of the final hearing might become necessary in particular cases, either to enable the engineer to amend and correct his report, or for a correction of the report of the viewers, or for some other proper purpose, and provision was made therefor. Where an adjournment is taken for the purposes stated, or for the convenience of the court, or county board, there is presented no occasion for the service upon interested parties of a notice of the adjournment other than that given at the time. The occasion for a new notice arises only when the amendments or corrections made by the engineer or viewers, under direction of the court or county board, include lands to be assessed for the drain or which may be damaged thereby which were not included in the original report. In such event a new notice of hearing is necessary. But the statute should not be construed as requiring a new notice where no additional lands are embraced within the amendments made. In the case at bar no additional lands were brought into the proceeding and the statute, properly construed, authorizes an adjournment in such a case without the publication of a notice of hearing.
Order affirmed.