The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-01-24
DECISIONS OF THE SUPREME
COURT OF NORTH DAKOTA

| passes into Canada, the drain com
| missioners have power to secure a
suitable outlet by improving the river
after 1t passes into Canada.
8. In such a case, the fact that the
control Of the Improvement after its
completion is not vested in the coun-
ty commissioners, but in the council
| of the municipality through which
| the river passes, in Canada, by virtue
Of bylaw of said municipality and
| contract between 1t and the board
of drain commissioners, does not de-
| feat the right of the drain commits
sioners to secure such outlet by inn
| proving the river bed.
s. Section 1923, r. C.. 1908, as
amended in 1907, making 1t necessary
to secure the right of way to land
through which drains in this state
pass, has no application to improve
ment or water courses for drainage
purposes.
Z. Improving a water course after
it passes beyond the drainage dis
trict for twelve to fourteen miles into
| foreign territory, for the purpose of
making an Improvement Of the water
course in this state efficacious, is not
! Of securing an outlet for drain pur-
! poses.
8. The general principle that land
benefited by drain equally with
| other land that is assessed for sucn
benefits shall not be- arbitrarily omit
| ted from such assessment, is not ap-
plicable where land in foreign terri
tory is not and can not be assessed
| for benefits incident to the construc-
| ton of the drain in the drainage dis
! trfct that is assessed.
Syllabus by the court.
Appeal from the district court of
McHenry county, Templeton, J., by re-
quest
Action to restrain the joint board
of drain commissioners of McHenry
and BottineRu counties. Judgment for
plaintiffs. Defendants appeal; re-
versed.
Geo. A. Bangs, for appellants;
Skulason & Burtness, for respondents;
opinion of the court by Morgan, C. J..
Fisk and Ellsworth, j. j.. concurring;
spalding and Carmody. ]. J.. dissent
ing.
In the supreme court, state of North
Dakota, October term, 1909
Michael Seller, relator, VS.. Horace
Bagley, judge OF the county court of
McHenry county, increased jurisdiction,
respondent.
L. An application to this court for
the issuance of writ of prohibition
directed to the county Judge will not
be entertained upon showing merely
of refusal by the district Judge to
issue such writ. II is only in excep-
tional cases involving questions of
great public Importance that this court
will exercise it's prerogative powers in
the issuance of writs to such inferior
courts.
2. II the district judge refuses. with
out cause, to afford relief, or abuses
his discretion in denying such writ. re-
lauor is not without remedy. but such
refusal or abuse of discretion affords
no ground for the issuance OF such writ
by this courts
3. The writ of prohibition will not
issue in any case where there is a
plain, speedy and adequate remedy in
the ordinary course of law.
Held, under the facts presented, that
relator does not bring himself within
such rule. as he possesses such remedy
by appeal.
(Syllabus by the court.)
Application by Michael Selzler for a
writ of prohibition against Horace
Bagley. county Judge.
Denied.
Butler Lamb for petitioner; Chris
tianson & Weber for respondent.
Opinion Of the court by Fisk, Judge,
all concurring.