150 N.W. 287 | S.D. | 1914
Lead Opinion
This cause is before us on rehearing; our former opinion being reported in 32 S. D. 492, 143 N. W. 778. Reference to said opinion is made for a statement of the case and of the questions therein discussed and decided.
“Where, as in the case at bar, the original petition asking for the establishment of a drainage ditch asks for a ditch about one-half mile in length — the description thereof in the petition giving the initial and terminal points — does the filing of such petition vest in the board of county commissioners any power, when giving notice of the hearing of such petition, to alter the description of the proposed ditch and describe it as one more than two miles in length, having its initial point nearly two miles from that named in the petition, such description agreeing with the description of the ditch petitioned for only as regards the terminal point?”
Upon further, consideration of the record herein, we are convinced that, while such record shows the facts to have been as stated in the question discussed in our former opinion, yet there was no assignment of error questioning the power or jurisdiction of such commissioners to give the notice which they did give. Instead of questioning the jurisdiction of the commissioners to give such ■ notice, appellants merely, contended that, while the statute provides “said notice shall summon all persons affected by the proposed drainage ditch .to appear at said hearing and show cause why the said drainage should not be established and constructed,” the notice given “did not summon the defendant [appellants here] at said hearing and was insufficient in law to constitute due notice.” The only reason, urged by appellants,
“In the notice of hearing on said drainage petition it does not appear that Union township was iti any way affected by the proposed drainage, and the supervisors of said -township, or the corporation itself, are not named therein, and were not summoned to appear at the hearing. And the appellants had no reason to believe from the notice 'that said township was to be damaged or benefited in any way by the construction of such drainage.”
In support of their contention that, in order for the notice to have been good against the township, its name must have appeared therein, appellants cite Zumbro v. Parnin, 141 Ind. 430, 40 N. E. 1085. An examination of the drainage act of that state (chapter 53, Ann. Ind. St., Rev. of 1894) reveals that it requires the names of the owners of the lands affected by the drainage to be stated in the original petition, if such names are known, and, where unknown, to- be so stated in such petition, and also requires written notice to be served on all owners or occupants of land, resident of the county. The-courts of that state hold that a township which is liable to assessment for drainage is, for the purposes of such statute, a landowner, and hold that the omission of the name -of any landowner whose name is known to the petitioners prevents the commissioners acquiring jurisdiction as against such landowner and his land. Conceding that a township is a landowner, does it necessarily follow that, under our statute, the omission of its name from the notice was fatal? We think not. Our statute does not require that the names of the owners of the land to -be affected be named in the petition, but only that the land to be affected shall be generally described. In the notice the commissioners shall “describe * * * the separate tracts of land through which the drainage proposed will pass and give the names of the owners thereof as appears from the records of the office of the register of deeds on the date of the filing of the petition.” We think it clear- that if a natural person owned a tract of land mentioned in the notice, but some one -else was named in such notice owing to the fact that the record title was in such other person, such notice would be good as against the real owner. Under the laws of this state, the records of the register of deeds' office would disclose a civil, township as the owner of land
“No affidavit of publication shall in any case be filed or recorded until such additional affidavit shall be so- annexed thereto.”
The want of such additional affidavit does not in itself render the publisher’s affidavit incompetent as evidence, except where due •filing or recording of such affidavit is a prerequisite to its receipt in evidence. It does not appear that such affidavit was objected to because not properly recorded or filed; if otherwise incompetent, such incompetency was not suggested.
“Said notice shall state the route and width of the drainage . established, a description of each tract of land affected by the proposed drainage arid the names of the owners of the several tracts of land as appear from the records of the office of the register of deed's of the county at the date of the filing of the petition and the proportion of benefits fixed for each tract of property, taking any particular tract as a unit, and shall notify all such owners to show cause why the proportion of benefits shall not be fixed as stated.”
No question is raised but that said notice described the sev■eral tracts affected and named the record owners thereof. It also named appellant as one party to be benefited, and stated the proportion of benefits fixed against it, but did not state what such benftts were for or what land,if any, it was based on. The lands that were described as belonging to individuals included one mile of highway along the township line between appellant and an adjoining township. While perhaps it would be better in such a notice to designate that the benefit to be equalized was the benefit to a highway, particularly describing il, yet we hold that such notice was sufficient and that appellant was bound thereby. Other alleged errors are urged, but there are none meriting separate consideration.
Dissenting Opinion
(dissenting). For the reasons stated in the former opinion in this case, I think the judgiñent and order appealed from ought to be reversed.