The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-05-06
Decisions Of the Supreme Court

tionments. and calculation of total
cost Of drain.
(dl In sue apportionment between
the counties by percentages of bene-
fits received. proportionate to total
benefits from the drain, the fact that
thereafter the three boards met In
joint session and jointly and seyerally
as boards signed and put forth a list
Of special assessments as to each and
all the tracts within the three coun-
ties so benefited by the drain, but
computed or a proper basis Of per-
centage Of benefits in the same man
ner as would have resulted had each
board separately determined said as
sessment in specie amounts. will not
inyalidate the tax s. apportioned in
specific amounts to each tract where
the lands are classified by counties
with a direction accordingly to the
county auditors to spread the assess
ments against such lands described as
are situated within the several coun-
ties. Such a list amounts but to the
issuance of three several lists in
which each county board determines
the tax in specific amounts upon lands
within its county. The fact that they
unauthorizedly so acted in joint ses-
sion does not invalidate such assess
ments.
5. Sec. 1927 in terms requires the
board of drain commissioners of each
county, prior to the letting Of con
tracts for the construction of the
drain, to make a return to the county
auditor, and requires that such re-
turn shall contain" certain papers.
minutes and proceedings. The board
of drain commissioners of Ransom
county made such return. This stat
ute requires the recording of said re-
turn by the auditor. This return was
never recorded. Held that the max
ing of such record is not inherently a
part of or condition precedent to the
assessment. but instead. merely a leg
islative requirement. md as such for
the purpose of procuring a record to
be made of prior proceedings: that
such recording IS not required that
constructive notice be given thereby
of previous proceedings. notice OF
which had prior thereto been required
to be given otherwise. Such failure
to record is a mere irregularity not
~invalidating the assessment. the stat
ute being directory and not manda-
tory.
6. The tendency Of an action at
the time of the tax sale, brought by
this plaintiff against Ransom county
to determine the validity of these spe-
cial drainage assessments. but not
enjoining the sale therefor, Is not OF
itself constructive notice to a pur-
chaser at such tax sale Of any rights
Of the plaintiff. so as to prevent such
purchaser from asserting in a subse-
| quent action brought by the former
plaintiff any rights Of etsoppel or
.,..-erwIse tnat might have been avail
able by the county in it's defense in
the original action.
Z. Jurisdiction having been con-
ferred upon the drain boards to es-
tablish and construct this drain. and
an apportionment of benefits and as
sessment based thereon having been
made by the proper authorities. re-
sulting in the tax having been spread
and becoming a lien by operation OF
law, all without plaintiffs objection
and with his actual knowledge thai
his lands with others were being ben.
Gifted by the construction Of the drain
at great expense, of the making OF
which he had actual notice, said
proceedings covering a period Of neal
ly five years, during which period be-
fore and since the completion of the
project he had remained acquiescent
he having granted right of way
through not a petitioner for damage
plaintiff will not be heard in equity to
assert the invalidity of special assess
ments levied upon his property to
defray such property's proportionate
share of the cost of the drain.
(a) Such rule of estoppel is IN
forced and applicable in this action
between private parties. The distinc-
ton applied in early tax cases in this
state, to the effect that there was q
difference in principle between an ac-
ton against a county for cancellation
of a tax and the determination OF
such an issue in an action to quiet
title between private parties. and
since in later cases disapproved, re-
fused recognition and application II
this action to quiet title.
(b) Defendant as a purchaser at
tax sale is held to be subrogated tt
all the rights possessed under sale
tax by Ransom county at the time Of
such sale.
8. There is no sufficient proof Of
any fraud on the part of the drainage
board.
9. The special assessments so lev.
led for said purposes upon plaintiff
land in 1909 were and are valid al
such for the amount so levied, to,
gether with interest thereon at sever
per cent. from date Of delinquency
March /, 1909.
10. That the notice of %delinquen
tax sale was invalid and vitiated tn,
sale as to plaintiffs lands in Rose
mead civil township. The first of tn,
three published notices Of sale liste'
the lands as situated within the town
ship of Rosemead, but the township
was particularly described by rang
as Range SIS, instead of the correc
description Of Range SO. After on
publication the sale notice was cor
!, rected. Held to have been an insufi
cient notice of tax sale and void 70
uncertainty of description of LAND t
be sold, and as two publications wa
; insufficient notice the sale had there
, on raj void.
! IL. Under statutes prior to Char
|, 29S, Session Laws 1911, and as ex
listing at all times in issue, no statu
tory interest or statutory penalty hav
ing been specifically provided to b
collected upon delinquent drainage as
easements arising from the %construc
i ton of drains to agricultural land
: none can be collected. And the pro
: visions of law applicable to the col
: ioo+ion ~ ~nanaifv ana intArasf nm rag