Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-01-22
NORTHERN DRAIN IS
TO Be CONSTRUCTED
SUPREME COURT REvERsEs De.
clsloN OF M'HENRY COUNTY
COURT.
Many Thousand Acres Of Flood Land
Will Be Redeemed-0rain viii Cost
Quarter Of a Million Dollars.

Quarter Of a Million Dollars.
The supreme court Friday reversed
the decision of Judge Templeton sit
ting by request in McHenry county
district court, in the matter Of the in
junction placed upon the drainage
commission of McHenry and Bottin-
eau counties restraining them from
constructing drainage canal which
would extend fourteen miles into the
Canadian territory.
George Freeman brought the action
and was one Of the settlers who would
be affected by the assessments made
for the cost of the canal. The case
was taken to the district court and
a verdict for plaintiff given and it
was this verdict the supreme court
reversed this afternoon.
The drainage canal runs from the
northern part of McHenry county and
the entire length of Bottineau county
and fourteen miles into Canada.
The lower court held that it was un-
lawful for the commission to spend
money raised by taxation in a foreign
county, but the supreme court holds
that under certain conditions which
existed in the present case, the con-
struction of one hundred and twen-
ty-five Thousand dollar canal will be
started in the spring and reclaim
twenty-five thousand acres Of fine
meadow land which is entirely useless
at the present time. Arrangements
have been made with the Canadian
government for proper outlets for the
waters. The meat Of the decision fol-
lows:
'Tmproving a water course after 1t
passes beyond the drainage district
for twelve or fourteen into foreign
territory, for the purpose of making
an improvement of the water course
in this state efhca'cious, is not an un.
reasonable exercise of the power of
securing an outlet for drain purposes"
State Engineer Atkinson has been
very active in the preliminary work
on the drain and says that the first
surveys were made in the fall Of 1907
and the final location made in April of
1908.
MIR. Atkinson made a trip to Win
nipeg to consult with the Canadian
authorities in the matter. He states
that George Freeman, In whose name
the suit for injunction was started,
Is one of the smallest holders and will
be assessed the smallest amount to
pay for the work connected with the
construction.
Following is the syllabus by the
court:
George F freeman; ct all, - Plaintiffs
and Respondents, VS.. John Trim
BILE, ct al, as Drain Commissioners
Of the Counties Of Bottineau and
McHenry, Defendants and Appel.
lants.
1. Boards OF Drain Commission
ers have only such powers as are
expressly conferred by statute, or
necessarily implied from the powers
conferred.
2. In acting as Drain Commission
ers, a large discretion is vested In
them in assessing benefits and in de-
termining when outlets for drains
may be secured, and that discretion
will not be interfered with where
power is granted to them except in
case of fraud or manifest abuse Of
such discretion.
3. Under Sections 1921 and 1922,
R. G. 1905, as amended by Chapter
SO, Laws of 1907, joint boards Of
Drain Commissioners have power to
secure an outlet to drains establish
ed within their district, in foreign
30
exists for securing such outlets.
4. Where it is necessary to i'm.
prove, deepen, or widen the channel
or bed of a river in this state in or.
der to drain flooded lands, and the
deepening and widening of such river
in this state would not be effectual
in draining such laods without deep
ing and widening the river bed for
about twelve Or fourteen miles after
it passes into Canada. the Drain
Commissioners have power to secure
a suitable outlet by improving the
river after it passes into Canada.
5. In such a case. the fact that the
control; of the improvement after
it's completion is not vested in the
county commissioners but in the
council of the municipality through
which the river passes in Canada,
by virtue of a bylaw If said munic-
ipality and a contract between it
and the board of Drain Commission
ers, does not defeat the right Of the
Drain Commissioners to secure such
outlet by improving the river bed.
6. Section 1923. r. G. 1905. as
amended In 1907. making it neces-
sary to secure the right of way to
land through which drains in this
state pass, has no application to i'm.
provement Of water courses for
drainage purposes
q. Improving a water course after
1t, passes beyond the drainage dis:
ttrict. for twelve to. fourteen miles
Into foreign territory, for the pur+
pose Of making an improvement Of
the water course: In. this state EN-
cacious, 10 not an unreasonable exer.
else Of the power of securing an out.
let for drain purposes.
8. The general principle that land