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ing out the tax deed relied on to support defendant's title, and adjudged invalid. [Ed. Note.—For other cases, see Taxation, Dec. Dig. § 829.*] Appeal from Circuit Court, Potter County; Loring E. Gaffy, Judge. Action by George B. Hannahs against W. W. Provine and others, prosecuted after the death of defendant named against Rebecca M. Provine, as special administratrix. From a judgment for insufficient relief, plaintiff appeals. Modified and affirmed.

Robert B. Fisk, for appellant. A. L. Ellis, A. Gunderson, and D. J. O'Keeffe (Gaffy, Stephens & Fuller, of counsel), for respondent.

HANEY, J. This is an action to determine adverse claims to a quarter section of land in Potter county. A judgment quieting title in the plaintiff, upon compliance with certain conditions, having been entered, and the plaintiff's application for a new trial denied, this appeal was taken. Though the cause was tried in October, 1903, and judgment entered on January 27, 1904, it was not submitted in this court until June 11th of the present year—an apparently unreasonable delay, for which this court is not responsible. The defendants originally were W. W. Provine, Rebecca M. Provine, his wife, and A. L. Ellis. Mr. Provine having died after the appeal was taken, the special administratrix of his estate was substituted as one of the parties defendant. Defendant Ellis' claims having been abandoned, the only rights requiring consideration are the plaintiff's and decedent's, as they appear from the record to have existed when the cause was tried in the circuit court. The plaintiff states in his complaint: “(1) That he is the owner, in fee simple, of the following described parcel or tract of land, to wit: * * * (2) That the defendants * * * claim some right, title, or interest in or to the said land and premises, adverse to the right, title, and interest of the plaintiff.” All these allegations not expressly admitted are denied by decedent's original answer, which “admits that this defendant claims some right, title, or interest in and to said land and premises, and alleges that such interest is a fee-simple title in this defendant, by virtue of a tax deed duly issued thereon to his grantor, and the deed from the grantee in such tax deed.” And as a second and further defense it is alleged that he “is the owner in fee simple of said land by virtue of payment of taxes thereon, and that he and his grantor, while in possession of said premises, have paid taxes thereon for more than 10 years.” Plaintiff replied, denying “each and every allegation in said answer and counterclaim contained.” During the progress of the trial, the plaintiff having introduced a patent from the

United States to one Meisenbach and a warranty deed from Meisenbach and wife to himself, conveying the land in controversy, the defendant having introduced evidence in support of decedent's tax title, the plaintiff having introduced evidence in rebuttal tending to invalidate such title, and the court having ruled that such tax title was invalid, decedent was allowed to serve and file an amended answer, wherein he alleged, by way of counterclaim, in addition to the allegations of his original answer, that he and his grantor paid the taxes on the land described in the complaint for each of the years from 1891 to 1902, both inclusive, stating the amount for each year, that his grantor paid $12.15 as expenses in taking out the tax deed, that he and his grantor made valuable improvements on the premises in good faith and under color of title, stating the character of the improvements and the cost of each, that all such improvements are still on the land and worth what they cost, and that none of the sums so expended for taxes and improvements have been repaid by the plaintiff. The trial was postponed for one day to enable the plaintiff to meet these issues. When the trial was resumed the plaintiff objected to the introduction of any evidence under the amended answer, for the reason that no opportunity had been given to meet the proof that might be introduced under it, which objection was, in effect, overruled; the record stating it was “simply ignored.”

[1, 2] This objection was properly overruled. It did not challenge the sufficiency of the amended answer in any respect. If the plaintiff was not prepared to proceed with the trial, he should have applied for a further postponement. The amendment, if one was required, which is not at all clear, was entirely proper and within the discretion of the trial Court; the purpose of the action being to determine what, if any, interest in or lien upon the property was held by either of the defendants. And, assuming that the plaintiff's objections to the order allowing the amendment amounted to an application for further time, there was no abuse of discretion in denying such application. The plaintiff knew, or should have known, when he summoned the decedent into court to asSert his claims, that the latter had paid taxes and made improvements upon the premises while in possession of the same, and that he could not prevail in the action without an adjustment of the decedent's rights regarding such taxes and improvements. In absence of any showing in support of an application for a postponement of the trial, this court cannot conclude that the trial judge, who was conversant with all the circumstances, abused his discretion by proceeding to determine what, if any, sums should be paid to the decedent for taxes and improvements.

[3] Moreover, the statute then in force 1 payment of the amount of taxes justly due contained these provisions: "No actions on said land, $10 for taking out the tax deed, shall be commenced by the former owner or and the value of the permanent improveowners of lands, or by any person claiming ments placed thereon by the defendant. (2) under him or them, to recover possession of That the plaintiff is entitled to have the title land which has been sold and conveyed by of the land in suit quieted in him on payment deed for nonpayment of taxes or to avoid of the taxes, interests, costs, and charges paid such deed, unless such action shall be com- by the defendant and his grantors, in the menced within three years after the record- amount found by the court, the sum of $10 exing of such deed, and not until all taxes, pended in costs in taking out said tax deed, interest and penalties, legal costs and ex- and on payment by the plaintiff to the defendpenses shall be paid or tendered by the par- | ant of the value of the permanent improve ties commencing the action.

And 'ments placed on said land in suit, in good faith whenever, in any action at law or in equity, by the defendant and his grantors as found the validity of any tax certificate, or tax by the court, and on payment of the costs of deed, arises upon the pleadings or otherwise, this action, all within 60 days from the entry except where the property sold was not tax- of judgment herein. And the court further able, where the tax was for an illegal pur- finds that the defendant W. W. Provine, in pose, or where the tax was paid before the case said plaintiff fails to pay such sums sale occurred, such action shall not proceed within said 60 days, is entitled to have said in favor of the party assailing such certifi- title of said land quieted in him on payment cate or deed, unless he shall, within such to the plaintiff, or to the clerk of this court time as the court shall deem reasonable, de- for his use, of the value of said premises posit in court, for the benefit of the party without the improvements as found by the claiming thereunder, an amount equal to the court, less the amount due thereon to the sum required by law to redeem from the defendant for taxes paid thereon by the detax sale or sales involved together with the fendant and his grantors, as found by the costs and disbursements of the action then court, within 90 days from the date of judgincurred by the party claiming under such ment and decree entered therein, to wit, the certificate or deed.” Laws 1903, c. 70. As sum of $244.72, less costs of action. (3) The the plaintiff should not have commenced this court finds that in case the plaintiff does not action, or have been allowed to proceed after pay the sums above required of him to pay the validity of decedent's tax title arose, in the time required, and the defendant does without a tender or deposit of the sum re- ; not pay to the plaintiff the value of such quired to redeem, it is difficult to discover land without the improvements as found by how he could have been prejudiced by the the court, within 90 days from the date of course pursued by the trial court.

the judgment and decree entered herein, that [4, 5] The tax deed, though void on its a special execution issue herein to the sheriff face, constituted color of title; the land was of Potter county, South Dakota, directing taxable; it does not appear to have been sold him to levy upon and sell said premises in for taxes levied for illegal purposes; the tax- the manner required by law for selling real es had not been paid; the evidence justifies property under execution, and after notice the finding that the decedent was holding of such sale he sell said premises, and from the property in good faith; the objection that the proceeds of such sale he first pay the the amended answer was not sufficient to costs of this action and of such sale under justify the admission of evidence as to the said execution; second, that he pay to the value of decedent's improvements, raised, as defendant the amount found due defendant it was, after issue joined by plaintiff's re- for taxes, interest, costs, and charges paid on ply, was properly overruled; so the only said premises; third, that he pay to said dematter which demanded serious attention fendant the sum found due the defendant was the amount expended for taxes and im- for the permanent improvements on said provements properly chargeable against the premises as found due by the court, and that plaintiff. Parker v. Vinson, 11 S. D. 381, 77 he pay the residue received for said premises N. W. 1023; Meadows v. Osterkamp, 13 S. D. on such sale to the plaintiff in this action, or 571, 83 N. W. 624. The court found the to his attorney of record and take a receipt just and true amount of the taxes to be therefor, that he issue to the purchaser of $145.28; the value of the land without the said premises at such sale a certificate of improvements to be $700; the value of the sale, as required by law on sales of real es. improvements to be $1,500; that decedent's tate on execution, and that he make a regrantor paid $10 for taking out and record-turn to this court of his proceedings thereing the tax deed; that the plaintiff has not on." paid or tendered any of said sums, or part [6] As to the true amount of the taxes, thereof, or offered to pay the same; and con- the value of the property without the imcluded: “(1) That the proceedings leading up provements, and the value of the improveto the selling of said land and premises, at ments, counsel for plaintiff has wholly failed the tax sale of 1892, for the taxes of 1891, to point out wherein the evidence is insuffiare not sufficient to support a tax deed, and cient to justify the decision. Causes are not

a trial court are presumptively right. Appellant's counsel has not attempted to show what the several sums found by the court should be, of what items they are composed or to what extent they should be reduced. It is not the duty of this court to search for errors. It should not disturb findings of fact, unless it clearly appears that they are not sustained by the evidence.

[7] Numerous assignments of error relating to the admission and rejection of evidence have been examined; none of them being deemed of sufficient importance, in a case tried by the court without a jury, to warrant discussion. No ground for reversal or modication having been shown, except as to the expense of taking out the tax deed, which should be deducted from the amount required to be paid by the plaintiff, the judgment of the circuit court, as so modified, must be affirmed, with costs and disbursements in this court taxed in favor of the respondent.

DAVENPORT TP. v. LEONARD TP. et al. (Supreme Court of North Dakota. Oct. 16, 1911.)

(Syllabus by the Court.)

1. WATERS AND WATER Courses (§ 115*)— SURFACE WATERS–WHAT ARE SURFACE WATers. The waters of a water course emptying into a swale, and there spreading over considerable areas and losing identity as a stream, and commingled with surface water from other sources, become surface water. [Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 126; Dec. Dig. § 115.”] 2. WATERs AND WATER Courses ($ 115*)— SURFACE WATERS–DRAIN AGE. The disposal of such surface water is governed by the law applying to drainage of surface waters, and no question of riparian rights in running streams is involved. [Ed. Note.—For other cases, see Waters and Water Courses, Dec. Dig. § 115.”]

3. WATERS AND WATER Courses (§ 119°)—SURFACE WATERs—OBSTRUCTION or REPULSIon OF FLOW. The diversion of surface water by highway ditches, necessarily excavated in building a public highway, although it occasioned damage, is, under the facts of this case, held to be not actionable. [Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. §§ 131–134; Dec. Dig. § 119.”] Appeal from District Court, Cass County; Pollock, Judge. Action by the Township of Davenport against the Township of Leonard and others. From a decision in favor of defendants, plaintiff appeals. Affirmed.

Engerud, Holt & Frame, for appellant. W. R. Lovell, for respondents.

GOSS, J. This action arises from the inundation of certain lands on and in the near

Vicinity of the township line between Leonard and Davenport townships, in Cass county. causing damage to highway grades on such township line. The plaintiff asks injunctional relief to prevent defendants from obstructing the natural waterflow by the maintenance of certain highway grades and highway ditches on either side of the same, as heretofore constructed by them, and now maintained on the section line between sections 24 and 25, in Leonard township, and which grade ditches convey water to the township line grade and grade ditches between said townships. The other parties defendants are sought to be enjoined from preventing natural flow of water across section 24 owned by them. The water, the cause of the trouble, comes from two sources—melting snow and rainfall, directed by the watershed toward and upon the northern portion of section 25 and the southerly part of section 24, in Leonard township; and also a stream of water starting from springs on section 35, in Leonard township, thus having a living, constant Source, and flowing in a well-defined channel for some two miles, emptying its waters into a bog or marsh varying in extent according to seasons. The water thus discharged between 200 and 300 feet South of the south line of section 24 forms a pond or marsh from 15 to 30 rods in width. Though the brook runs constantly, it has no well-defined channel northward and across section 24, but instead, at all seasons, except during high water, its waters are either lost, or end in the lowland adjacent to the creek's mouth. Plaintiff claims there exists a natural outlet from this bog in a northerly direction across section 24, and charges defendants with the diversion of the waters by means of certain artificially created ditches on either side of the highway between sections 24 and 25, extending eastward and joining with similar highway ditches extending north and south on the town line grade between the two townships. From these township line ditches, carrying water most of the Season, the township highway between the townships is injured by the unusual and increased flow thus produced. These ditches were caused by the excavation necessary to build the road grade, and are shallow, of uniform depth, and such only as necessarily resulted in the use of the ordinary road-grading machinery. They are sufficient, however, to increase the flow of surface water from near the place where discharged from the creek, and to collect additional surface water from the lowlands crossed by such ditches. There are two culverts across the road north of where the spring brook discharges its water. These culverts permit the flow of water to the north side of the east and west grade between sections 24 and 25, and the trial court found that at the end of the larger

culvert “an embankment had been constructed and been extended along the south side of the southeast quarter of said section 24, commencing at about the southeast corner of section 24, about a rod north of the south line of said southeast quarter, and running due west to a point about a rod east of the west line of said southeast quarter Section. And that since the purchase of the said southeast quarter section by the defendants Van Arnum and Fritzinger the said embankment has been permitted by said last-named defendants to remain on said tract as originally constructed.” The court also found the discharge of the spring into the portion of section 25 heretofore mentioned, and that the spring “had ceased, and ever since has ceased, to follow a definite channel, but has spread out upon and flowed over the northern half of said section 25 as surface water, and that a portion of such surface water, since the construction of the highway road and grade aforesaid, has, during a part of such years [since 1900], found its way to and accumulated in a road ditch along the south side of the highway road and grade aforesaid, and has thence flowed north along the west side of the highway road and grade constructed and maintained during said years between section 24, Leonard township, and section 18 in Davenport township.” The plaintiffs admit: That a culvert between sections 24 and 19 of the respective townships, soon after it was made, was partially filled up to prevent the flow of the water through it, and thereafter raised for the same purpose. That the road grades and ditches in question were built in 1900. That the embankment above mentioned along the south line of section 24, and on the north side of the highway grade, was either artificially constructed to prevent the water flowing northward as it emerged from the culvert, or that natural causes created it about 1900. In any event, such embankment obstructed the flow of water across section 24. The owner of the southwest quarter of section 19, in Davenport township (a township supervisor), at one time opened this embankment, permitting the water to flow northerly toward and into a natural depression extending upon or across the section, which act resulted in one of the owners of that portion of section 24 affected (one of the defendants) immediately closing the break through the embankment, turning the waters eastward again toward the township line, and also brought forth a warning from the owner as to dire results that would follow further meddling with his premises. Witnesses disagree on the flowage of water prior to 1900, but there is practical unaniminity in their testinomy that in excessive high water the drainage was partially or entirely across section 24, either northward or cornerwise in a northeasterly direction through natural depressions, not

channel ceasing where the creek discharged its waters, two or three hundred feet south of section 24. It is also a circumstance mentioned in the testimony, and one of which the court will take judicial notice, that the cultivation of the soil and changing of the prairie to cultivated fields, together with droughts prior to 1900, would have had a tendency to diminish the extent of the area naturally covered by such surface water; and, again, that the period from 1900 to the time of the trial of this action in 1909 was one of excessive moisture from natural causes, which would, no doubt, in the opposite way affect the lands in question. These are urged by defendants as causes for changed conditions now existing from those prior to 1900. Certain record evidence is before us, among which are exhibits of the original field notes of the survey of the land in question, containing thereon the course of the spring brook mapped to the middle of section 24; evidence of the opinion Ihad by the surveyors on the matter before us at the time of their survey from August 10 to 17, 1870, and June 29, 1874, and August 5 to 10, 1874; one of said plats being from the state engineer's office of this state, and the other from the files of the surveyor general's office of the then territory of Dakota. We also have the plats of two surveyors, testifying on opposite sides of this lawsuit, which plats agree substantially in all important particulars, among which may be noted the schedules as to elevations, showing the surface depressions and establishing that a natural depression of varying width exists from the mouth of the culvert near the southeasterly corner of the southwest quarter of section 24, northeast across section 24, and touching the corner of section 13 near or at the southeast corner of said section, showing a gradual but continuous decline, amounting to about 27 inches in traversing the mile, as appears from the plat offered by defendants' surveyor witness, as opposed to a decline of not quite 9 inches in the ditch along the half mile on the south line of the southeast quarter of section 24, from which located point a fall of 11 inches occurs in the ditch running one mile north to a point at or near the northeast corner of section 24. It is true the testimony given by the various witnesses is somewhat conflicting, as it naturally would be, in their descriptions of the lay of the ground and the natural course of drainage in the vicinity in question; but no very substantial conflict occurs, and the surveyors' plats of measurements actually taken we deem conclusive as to elevations. These establish a natural depression, continuing from the culvert near the southwest corner of the southeast quarter of section 24, opposite which culvert, two or three. into a low or level intervening space, extending from said culvert northeasterly across section 24, and constituting the natural drainageway of excessive water discharged by the spring in the place above described. There is, however, through said depression no channel, and the testimony is insufficient to establish that any well-defined channel ever existed across said section 24. The water in draining across said section has spread out, diffusing itself over considerable areas, varying in width according to natural depressions. [3] We are satisfied the facts make the decision of this case controlled by Carroll v. Township of Rye, 13 N. D. 458, 101 N. W. 894, wherein the rule was laid down that “a township is not liable for the loss suffered by a landowner by the increased flow of surface water upon his land, resulting solely from the improvement of the highway in the ordinary manner, without negligence.” While this is not an action for damages, yet the principle applies to the right of the plaintiff township to restrain damage occasioned by the surface water, as aptly as it does to collect damages so caused, where the flow complained of in either case is augmented and increased beyond its natural state by the ordinary grade ditches necessarily dug in the erection of grades in improvement of township highways. [1] Counsel seek to discriminate the case cited from the one before us, urging that the water discharged by the brook should not be found to be surface water, but instead should be treated as still within a water course. Under normal conditions, under the facts in this case, the stream disappears, loses its identity and characteristics as such, as much so as though it had emptied into a lake or large body of water, instead of losing its waters, as it does, by spreading them over a considerable surface, enabling them to be absorbed by the ground and perculated through quicksand, or other kind of subsoil, impregnating with moisture a large area. Under different soil conditions, the accumulations of water at this place might have resulted in a lake or lesser body of water, instead of a slough of stagnant water, largely absorbed by the soil, to the injury of the land and highways in the vicinity. Under these facts, our conclusions from the evidence (found also by the trial court), are the waters discharged from the brook, commingled with surface waters from the other sources mentioned in this opinion, are surface water. [2] The rights of the parties relative thereto are to be governed by the rules of law applicable to drainage of surface water, instead of by the law as to riparian rights in water Courses or streams having definite channels.

If we were passing on the rights of riparian owners to the spring brook in question above the place where it discharges its waters, an entirely different holding would result, as we would be dealing with a natural running stream, instead of drainage of surface water. No question of riparian rights is involved herein. The law applicable to water courses is inapplicable under the finding that the water of the brook on its diffusion heretofore described becomes surface water. Thereafter the law as to drainage of surface water governs. This also is to be considered with the fact that its drainage complained of has been occasioned by ditches maintained as improvements made in the performance of official duty by the township officers, defendants, or their predecessors in office. Farnham on Waters and Water Rights, pages 1553 to 1578, and chapter 29, same authority. See citations in exhaustive notes to following cases, viz.: Wharton v. Stevens (Iowa) 15 L. R. A. 630; Gray v. McWilliams (Cal.) 21 L. R. A. 593; Railway Company v. Brevoort, 25 L. R. A. 527; Railway Company v. Dufour (Cal.) 19 L. R. A. 92, and 64 L. R. A. 236; 26 L. R. A. 632. Also see Gould on Waters, $$ 263, 264, et seq.; volume 48, Cent. Dig., under Waters and Water Courses, and subd. 5 thereof, on Surface Waters.

The action against the township board of Leonard township will not lie. As to the other defendants (landowners across whose lands it is contended the natural waterflow would be), so far as said highway ditches are concerned, it does not appear that either of them have ever done more than to permit the township officers to keep and maintain the grade, resulting incidentally in the digging of the highway ditches beside the grade; all of which have remained as at present for the past 10 years. Consequently, it does not appear how any rights of the township board of Davenport township (the plaintiff) have been interfered with to its injury by the two defendant landowners. As is well said in Carroll v. Township: “Whatever damage plaintiff suffered from surface water diverted by these highways is not traceable to any misconduct on defendant's part.” It is uncertain whether the damage to the grade results from the embankment maintained, or whether it results from the act of the member of the board of Davenport township, who, for reasons of his own, rendered drainage of the township line grade impossible by filling in a culvert designed to carry off the water, occasioning this injury. Also it appears that facts exist tending to leave in doubt the question of whether the town line grade has been properly maintained for highway purposes. leaving out of consideration the drainage of WaterS.

Under all the facts, we affirm the decision of the trial court.

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