Page:North Dakota Reports (vol. 48).pdf/93

 The court will take judicial notice of the fact that in this state there is a large amount of unbroken land. § 7938 subdss. 35, N. D. Comp. Laws 1913.

Sullivan, Hanley, & Sullivan, for respondent.

, J. This is an appeal from an order overruling the defendant’s motion to dismiss a petition for a writ of mandamus, and also overruling a demurrer to the petition. The essential facts set forth in the petition are in substance as follows: The plaintiff is and was, in the spring and summer of 1920, the owner of certain lands in Mercer county. In that year he cultivated a certain acreage of his land and sowed crops thereon as follows: 100 acres of wheat, 25 acres of flax, 20 acres of barley, 35 acres of millet, and 35 acres of corn. The assessor did not return to the county auditor any of the plaintiff’s land as tillable land, nor did he file with the county auditor any return or certificate that any of the land was in crop and subject to the hail insurance premium tax, as he is required by law to do. During the month of July the crop was damaged by hail, and the loss was reported to the Hail Insurance Department in the State Capitol at Bismarck. It was subsequently adjusted and the adjustment accepted by the plaintiff. Sometime after the hail storm, the assessor made a certificate as to the number of acres cropped, and filed it with the county auditor. The Commissioner of Insurance, upon ascertaining that the plaintiffs land had not, before the storm, been classified as tillable nor certified as cropped, canceled the adjustment. The petition prays that the defendant be required to place the name of the plaintiff on the list of those who have sustained hail losses to be certified to the state auditor, and to certify also the adjustment as made.

The question presented is whether or not, under chap. 38 of the Laws of the Special Session 1919, land sown to crops is automatically insured against loss without classification and certification by the assessor or the owner. We are of the opinion that the hail insurance provided for under this act does not apply automatically, and that the necessary steps had not been taken to bring the plaintiff’s risk within the operation of the faw prior to his loss. The reasons for our conclusion may be briefly stated as follows:

The law provides (§6) for a flat rate of 3¢ per acre per year upon all tillable land, and for an indemnity acreage tax (§7) in sufficient