Page:North Dakota Reports (vol. 48).pdf/885

 ramento Sup. Ct., supra; Chatterham v. Davis, 183 Ill: A. 506, 11 C. J. 106.

J. E. Nelson and E. T. Burke for respondents.

, J. This case is a sequel to Mogaard v. City of Garrison, et al. 47 N. D. 468, 182 N. W. 758. It comes here upon an appeal from ani order dissolving an order to show cause and dismissing plaintiff’s petition for a writ of certiorari. The petition seeks a review of proceedings had in the city council of said city upon a formal request to disconnect and exclude certain territory. Upon the filing of the petition for a writ of certiorari, an order to show cause was issued, and, upon the return day, counsel stipulated that the record of proceedings of the city council, as set forth in the plaintiff’s petition, was correct, and further stipulated that the questions involved should be determined as fully and finally as if the court had issued its writ. The record facts are as fol- lows: The plaintiff is the owner of the S. E. quarter of the S. E. quarter of section 7 in township 148 north of range 84 west of the Fifth meri- dian, lying within the corporate limits of the city of Garrison. The city and this 40-acre tract have common boundaries on two sides of the tract for a distance of 80 rods on each side, the tract being situated in one corner and extending for half the width of the city and one-fourth its length.

The petition to exclude this territory complies with the statute in every respect. Upon a hearing had before the city council, it appeared that the tract was not platted or laid out in city lots or blocks; that there were no streets or alleys upon the property, no water mains, pavements, side- walks, or other municipal improvements of any kind, except a sewer Pipe extending across the land about 60 feet from the southern boundary; that the sewer extends about 40 rods beyond the tract in question and beyond the city limits, where it discharges its contents upon other land purchased by the city for that purpose; that the city has a right (presumably an easement) to go upon the petitioner’s land for the purpose of caring for the sewer and preventing interference with the same; that the sewer is approximately 60 rods from any building on the plaintiff’s jand; that there are no sewer connections on the land in question and no house connections for a distance of about 100 rods above the land; but that there is a connection for a creamery which is apparently some-