136 Minn. 272 | Minn. | 1916
Lead Opinion
Certiorari to review proceedings to establish a judicial ditch in Murray and Cottonwood counties. The relator is the owner of a tract of 61 acres that was assessed for the ditch. He is also a resident and taxpayer in the village of Westbrook, Cottonwood county. In the proceedings below relator appeared in his own behalf and also as attorney for other property owners and for the village. Neither the village nor any of the other owners of property assessed for the ditch seek to have the proceedings reviewed in this court. While the relator states in his petition for the writ that he represents, and makes the petition on behalf of other landowners, their names are not given, and we find nothing in the record that warrants holding that any such other landowners are here complaining of the judgment below. Nor is the village a party to the ease in this court. It was a party below, but appears to have been satisfied with the result.
The proceedings were begun in March, 1915, under Laws 1905, p. 303, c. 230, and amendatory acts, by a sufficient petition duly 'filed. After a preliminary hearing, an engineer was appointed to make a survey of the ditch, estimate the cost thereof and perform the other duties required of him by the law. He subsequently made and filed his report, and the court appointed viewers to estimate and report the benefits and damages. The viewers filed their report, and the matter came on for final hearing in December, 1915. On the evidence taken, the court, in March, 1916, made and filed its final order, which is one purporting to establish the proposed ditch, and to levy assessments for benefits upon the lands described in the order. The ditch and branches were to be constructed wholly of tile laid under ground, except that a small portion of the main ditch and of one branch was to be open ditch. The project is a large one and it is not questioned that it is necessary in order to drain the low, marshy lands in the easterly portion of Murray county and the western part of Cottonwood county. Among the many branch ditches, the ones with which we are concerned here are called Branch L and Branch L-l. Branch L was to run in an easterly and westerly direction through the corporate limits of the village of Westbrook, but south of the platted portion thereof, through agricultural land, a part of which is the tract owned by relator, as before mentioned. Branch
The contention most relied on by counsel for relator is the illegality of thus authorizing a discharge of the village sewage into the proposed ditch, and assessing the village for the necessary connections. As we have said, the village appears to be satisfied with this judgment and with the assessment mentioned. It does not appear that relator can suffer any damage from this provision of the judgment. It does not affect the amount of the assessment on his land, nor can his land be assessed by the village to pay any proportion of the assessment for the connections mentioned, as it cannot be served by the village tiling system or receive any benefit therefrom. Nor does it appear that the proposed discharge from the village system will overtax the judicial ditch, or be any menace to the public health. Without expressing any opinion as to whether this part of the judgment could stand against an attack by the village, or by a property owner whose rights were directly affected, we reach the conclusion that relator cannot question on this hearing either the legality of the connection, or the assessment against the village. The village has taken no steps to review the judgment, nor have any property owners other than relator. It is clear that a resident and taxpayer of a.village cannot bring certiorari to review a judgment against
We take up the various claims of defects in the proceedings of which the relator complains.
It is urged that the judgment does not establish the ditch. It is true that there is no language saying expressly that the ditch is “established,” but, taking the judgment as a whole, it is plain enough that it is one establishing the ditch as described in the engineer’s report, which is full and clear, and is expressly confirmed by the judgment. We hold against relator on this point.
There is no merit in the point that notices were not posted in the village of Westbrook. They were posted in the township in which the village lies, and and this was a compliance with the law. The points as to insufficiency in amount of the bond, and that the engineer’s report was made by an assistant, instead of by the engineer himself, are obviously not well taken. There are several claims of errors in the judgment, such as omitting therefrom a school farm and creamery lot, cutting down the amount of the assessment on a certain lot, lumping the assessments on several contiguous lots, changing the route of a branch so as to take the tile from along relator’s land to a different tract. Our examination of the evidence discloses no reason why we should interfere with the conclusions of the trial court on any of these details.
A meandered lake, known as “Mud Lake,” containing about 180 acres of land, will be drained by the system established. The court finds that
Our conclusion on the whole case is that no valid ground is shown for disturbing the judgment below. If relator is justly aggrieved by the amount of his assessment, his remedy is in the jury trial which he has demanded.
Judgment affirmed.
Dissenting Opinion
(dissenting).
In my opinion relator has such interest in the assessment of $3,000 against the village of Westbrook as to warrant his securing a review of such assessment on cer.tiorañ. He is a resident and taxpayer of the village. This is sufficient interest to give him a right to have reviewed any order or judgment for an assessment, the direct consequence of which must be to add to the burden of local taxation. Maxwell v. Board of Supervisors of Stanislaus County, 53 Cal. 389; Orr v. State Board of Equalization, 3 Idaho, 190, 28 Pac. 416; Moore v. City Council of City of Perry, 119 Iowa, 423, 93 N. W. 510; Biddle v. Borough of Riverton, 58 N. J. Law, 289, 33 Atl. 297; People v. Board of Supervisors of County of Westchester, 57 Barb, 377; see Champion v. Board Co. Commrs. of Minnehaha County, 5 Dak. 416, 428, 41 N. W. 739.
This is in accord with the rule applied in this state in injunction cases. It was said in Hodgman v. Chicago & St. P. Ry. Co. 20 Minn. 36 (48), of a plaintiff taxpayer who sought to restrain an issue of city bonds, that “the damages which he will sustain in case his burdens of taxation are thus increased, .are not in common with the damages to other taxpayers, but they are special, affecting his private property and private rights.”
State v. Village of Lamberton, 37 Minn. 362, 34 N. W. 336, was a
I am also of the opinion that the assessment of $3,000 was unauthorized, and that the drainage laws of the state do not authorize the drainage of a sewer system of a village.
On January 12, 1917, the court ordered a reargument upon the following points only:
(1) Can the land of relator within the corporate limits of the village of Westbrook be assessed or taxed to pay any part of the assessment against the village for connecting its sewage system with the judicial ditch ?
(2) Is this assessment against the village valid?
On March 9, 1917, the following opinion was filed:
The reargument in this case satisfies us that the result reached in the former decision was right, though we may have been mistaken in assuming that the village of Westbrook was assessed $3,000 for making the necessary connections for the discharge of the village sewage into the proposed ditch.
The assessments were for “improvement of main outlet for village at Villa street and Wells avenue, $2,500.00;” and for “improvement of two outlets for drainage east of depot and south, of railway $500.00.” It is vigorously insisted by counsel for respondent that the system of tiling in the village was not a sewer system, but a drainage system, and that the assessments were not made against the village for the privilege of discharging its sewage into the ditch. If this is correct the village was not assessed for permitting it to connect the outlet of the village sewerage system with Branch L-l, on condition that a septic tank be first installed, as the judgment does not provide that the village was to pay anything for this right. There can be no doubt of the legality of assessing the village for the improvement of outlets so that water from its streets
We still think he has no right to bring certiorari.
Judgment affirmed.