We think the this work beyond its own territory. In other | tirely abandon the project. power to secure an outlet outside of the poses. In Maywood County et. al. v. Village of Maywood, 140 Ill. 216, 29 N. E. 704, the court said: "It is insisted by appellant that no right of way for this easterly extension has been, or can be, obtained by the village authorities, and therefore the whole proceeding is illegal, the position being that the corporate authorities of a city or village can exercise no power beyond its limits in the construction of a local improvement like the one in question, our statute conferring upon them no such right. The village, in this case, claims the right to pass over the private Under certain circumstances, the board is property east of its limits by deed from the authorized under said section 1821, Rev. owner, but whether it has such right or not, Codes 1905, as amended in 1907, to vary in our opinion, is immaterial as to the validfrom the line described in the petition, and ity of the assessment in question. The simwhen the land described in the petition does plest form in which the question can be connot give sufficient fall to drain the land, the sidered is, Can a valid ordinance be passed board may extend the line below the outlet by a village to extend a sewer beyond its named in the petition; and authority is giv- limits? No ordinance for a local improveen to clear out and straighten out channels ment is valid which does not describe the far enough to obtain a sufficient outlet. improvement contemplated; therefore, if in That section reads as follows: "When the that description it showed an attempt to do length of the line described in the petition that which it is not authorized to do, the does not give sufficient fall to drain the ordinance is void on its face. The general land sought to be drained, the board of drain doctrine that a municipal corporation can commissioners may extend the drain below only exercise its power within its corporate the outlet named in the petition, far enough limits is conceded. The rule is founded on to obtain a sufficient fall and outlet." In his the fact that, generally, no authority is givreport, the engineer states that "the length en by their charters to act beyond such limof the drain described in the petition did its; hence corporate authorities are restrictnot give sufficient fall to drain the landed in that regard, as in all their attempts to sought to be drained, and that in order to obtain sufficient fall to drain said lands, such drain must be extended into Canada a distance of approximately 15 miles." In his report, the engineer advised the drainage board to vary the terms of the drain as petitioned for to that extent, and the board, by resolution adopted such recommendation. The power to establish drains would often be of no beneficial use whatever, if the drainage boards must stop all the work at the boundary line of their districts. In this case the drain proper, being the river, is not in foreign territory. The drain is in McHenry and Bottineau counties. To find an outlet, the board was forced to secure it by dredg exercise corporate authority, by the general rule that they can exercise only such powers as are granted by express words. This general rule has, however, the qualification that such authorities may also do those things which are 'necessarily or fairly implied in or incident to the powers expressly granted.' We have already decided that a village may lawfully extend its sewers beyond its limits for the purpose of securing a suitable outlet for the same. Shreve et al. v. Town of Cicero, 129 Ill. 226, 21 N. E. 815; Cochran et al. v. Village of Park Ridge, 138 Ill. 295, 27 N. E. 939. In such case, the improvement is within the corporate limits, and for the exclusive use and benefit of the municipality. pose of giving practical effect to the sewer | and has not been denied that the acquisition or system of sewerage. No one will deny and maintenance of public parks, securing that a sewer in a city or village is a local improvement, within the meaning of section 1, art. 9, c. 24, of the Revised Statutes of 1845. Hence the power to construct it under the provisions of that article is expressly given, and the right to also provide suitable outlets for the same, even outside of its boundaries must result by fair and necessary implication; otherwise the express power would in many instances be unavailing." * pure air and healthful rest and recreation to the people, is a city purpose when executed within the corporate limits, and the sole contention is that it ceases to be a city purpose when in any degree or to any extent it moves outside of those boundaries. What is the change which transforms the inherent nature and character of a city purpose when it passes the municipal lines, we are told only by the grouping of extreme consequences, foretold as possible results." In Shreve v. Town of Cicero, 129 Ill. 226, 21 N. E. 815, the court said: "The extension of the sewer south in the town of Lyons, from Thirty-Ninth street to Mud Lake cannot be regarded as a local improvement in another town. Suppose no outlet can be found without extending a sewer a short distance into territory of another town. We think the town authorities would be authorized in such case to do so, without a violation of the rule announced in the case cited." In Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601, the court said: "The general doctrine is clear that a municipal corporation cannot usually exercise its power beyond its own limits. If it has in any case authority to do so, the authority must be derived from some statute which expressly or impliedly permits it. There are cases where considerations of public policy have induced the Legislature to grant such power. The commonest instances are where a supply of water can only be obtained from a distance. * There seems to be no reason why The following cases announce the same an outlet should not be sought elsewhere, general principles. Whereas no one of the provided the charter furnishes the means of cases is based upon facts where the corpoobtaining one, expressly or by fair implication. | rate authorities did work or secured outlets If it can only be obtained by building a sew- for sewers or drains in territory outside of er or ditch beyond the city, the charter seems the United States, we do not see that the to be defective in making no express provi- question of power should be limited in case sion for such works. But if by leading a of necessity, in cases of going outside the sewer or ditch to the city limits, it can be limits of the United States, any more than connected with an outlet beyond, there would in extending the power by going beyond the seem to be no reason for preventing such boundaries of cities, counties or townships connection. Drainage is a public necessity." for outlets. 28 Cyc. 954; 10 A. & E. Enc. In Washer v. Bullitt Co., 110 U. S. 558, Law, 247; 1 Dillon Mun. Cor. 446; Elliott 4 Sup. Ct. 249, 28 L. Ed. 249, the court said: on R. & S., 505; Lester v. City, 69 Miss. 887, "The power conferred upon the county court 11 South. 114; Gillison v. Cressman, 100 Mich. by the statute of Kentucky, to erect and keep 591, 59 N. W. 321; Schneider v. Menasha, in repair necessary public bridges, includes 118 Wis. 298, 95 N. W. 94, 99 Am. St. Rep. within its terms a bridge across the county 996; In re Mayor, 99 N. Y. 569, 2 N. E. 642; boundary, as well as one wholly within the Beasley v. Gravette, 86 Ark. 346, 110 S. W. boundary limits. Unless, therefore, there is 1053; Langley v. Augusta, 118 Ga. 590, 45 other legislation which modifies the power S. E. 486, 98 Am. St. Rep. 133; Haeussler v. thus conferred, the authority of Bullitt coun- St. Louis, 205 Mo. 656, 103 S. W. 1034; Mcty to contract for the erection of the bridge Bane v. Fresno, 112 Cal. 159. in question is plain." In Company v. City of Billings, 111 Fed. 972, 50 C. C. A. 74, the court said: "Nor is any reason perceived why a portion of the improvements should not have been made on land without the city. The scheme was to drain the city and thereby benefit the property thereof and protect the health of its inhabitants. To accomplish this, it was necessary to extend the drainage beyond the city limits, in order to obtain a proper outlet. A city council undoubtedly has the power, if it be granted the authority to make such improvements, to make it efficacious by extending it as far as necessary beyond the corporate limits." In People ex rel. Murphy v. Kelley, 76 N. Y. 475, the court said: "Nothing is here but the question of power. If it existed, we must so declare. The responsibility for its exer Our conclusion upon this point is that the drainage board had authority, under a reasonable construction of the statute, to expend money for the improvement of the Mouse river for the distance stated in Canada, as a public necessity, for the benefit of the landholders in Bottineau and McHenry counties. If a reasonable construction of the statute did not authorize the board to go beyond the limits of the district, we think it clear, under the authorities cited, that such power was clearly implied from the express power granted such boards to establish drains within their districts. It is claimed that there will be an abuse of the power in this case in extending the work of improving the channel 12 to 14 miles beyond the boundary line. This is presented as a ground for restraining the board, conceding for the purposes of the case that the The ritory exists. From the record it appears | ture, a different question would be presented. that it will be necessary to improve the It is not necessary to pass upon that quesriver to that extent to secure an effective tion, as it is not presented in this case. outlet. Without going that distance, the im- so-called improvements to be made in this provement within the counties of McHenry case consist of dredging the river, and widand Bottineau would be entirely ineffectual, ening and deepening the channel. Although and would not result in relieving the flooded the work or improvement under consideralands of the water gathered thereon. Inas- tion is called a "drain" in the pleadings and much as we have concluded that such power other papers, it is not in reality a drain, in exists in the board to go beyond the limits the common acceptation of that term. The of the district in cases of nécessity, we do contemplated improvement is in part governnot see that there was any abuse of the powed by section 1835, Rev. Codes 1905, which er under the circumstances of this case. The reads as follows: "The powers conferred by question as to what is a reasonable distance this chapter for establishing and constructdepends upon the facts of each case. What ing drains shall also extend to and include may be a reasonable distance under one state the deepening and widening of any drains of facts might be deemed unreasonable under which have heretofore been or may hereanother and different state of facts. As after be constructed; also to straightening stated by the trial court in its opinion, the clearing out and deepening channels of creeks term "reasonable distance" is a relative term, and streams and the construction, maintainand that court determined that the board did ing, remodeling and repairing of levees, not exceed what would be deemed a reason- dikes and barriers for the purpose of drainable distance under the facts of this case. age, and the board of drain commissioners Determining to what distance it became nec- may relocate or extend the line of any drain essary to go to find an outlet to accomplish if the same is necessary to provide a suitable the purposes desired is a question of policy outlet, and shall cause a survey thereof to . for the consideration of the board, and the be made, but no proceedings affecting the determination of board in such cases will right, of persons or property shall be had not be interfered with, except in cases of under this section, except upon the notice, fraud or manifest abuse. hearing and award prescribed in this chapter for the construction of drains in the first instance." It is next urged that the proposed improvements should be restrained as contrary to the provisions of the statute, for the reason that they are to be under the control of the rural municipality of Arthur after their completion. The by-law provides that such improvements within the municipality of Arthur "shall, when completed, be controlled by the rural municipality of Arthur The improvement in this case consists in dredging, deepening, widening, and straightening the river bed and channel, and whenever the course of the river is changed the persons owning land through which the river will flow, where its course is changed after crossing the boundary line, have petitioned for and consented to such change. No ob and shall be maintained by or under the supervision of the joint board of drain com-jections to these proceedings have been made missioners." Under section 1842, Rev. Codes 1905, all drains situated in this state are to be,under the charge of the board of county commissioners, and are by them to be kept open and in repair. From the provisions of this section, it is argued by the respondents that it has been violated by the contract entered into between the rural municipality of Arthur and the joint drainage board of the two counties named. Under the express language of said section, its application is limited to drains constructed in and situated within this state. We do not think that it was the intention of the Legislature to say that its provisions should be applicable under the circumstances of this case; that is, where the outlet is only sought in foreign territory by widening a stream. No statute makes such control necessary where a stream is widened for drainage purposes or to secure an outlet. If absolute control of streams be required as a condition precedent to securing outlets in a foreign country, such outlets, in most cases, could not be acquired. If the contemplated improvement was to by any one on the ground that land owned by persons along the stream is being taken without their consent. The same principles do not apply in this case as in cases of drains through land independent of a stream. When these improvements are completed, there will be nothing there that has not always been there. The river will be there, and nothing more. There is no control of the river bed or channel vested in the county commissioners within their respective counties, even as against the rights, of riparian owners. When, therefore, a river bed or channel is improved for drainage purposes, the control thereof is not with the county commissioners, but remains where it has always been, with the riparian owners, subject to the rights of upper and lower owners along the stream to a reasonable use of the water therein for certain purposes. We do not think that the by-law of the municipality, or the contract, was of any effect so far as control of the drainage commissioners over the stream is concerned. And though the cost of improving the river in Canada is incurred in connection with the drain as constructed in sessed against such lands, we fail to see that the fact, as stated in the contract and bylaw, that control shall remain in the municipality is any ground for restraining all further acts by the joint board. Under the by-law, the right of the joint board to maintain the drain in the river is guaranteed. By this nothing less can be meant than that the river is in charge of the joint board for purposes of keeping it in repair and maintaining it. We do not think that the argument of the respondent to the effect that the drainage board has assumed to become responsible for all future damages on account of the maintenance of the drain, presents a question of power. That question is one more of policy or expediency than of power. In view of the fact that the municipality of Arthur, by a by-law, consents to the making of the improvements, and in view of the fact that the owners of the land across the line have petitioned for the improvement, we think that the danger of future interference with the joint board in maintaining the improvement is slight, if not altogether out of the question, and too remote for consideration. What has been said in regard to the consequences following the fact that control of the improvement is not vested exclusively in the county commissioners is controlling on the point urged against the validity of these proceedings, for the alleged reason that the right of way to the river channel in Canada was not secured by the drainage board. The statute provides that the county commissioners shall acquire the right of way, and that it shall be the property of the county. Section 1823, Rev. Codes 1905. We do not think that this section is applicable, or intended to be applicable, in cases of improving natural water courses for drainage purposes. In this case the joint drainage board is concerned only in securing right to increase the flow of the river in the counties of Bottineau and McHenry, and this fact has naught to do with the title to the land through which the river flows. The next contention on behalf of the plaintiffs and respondents is that the proceedings of the drainage boards are null and void, and should be restrained permanently, for the reason that certain lands in Canada are materially benefited by the construction of the drain without any assessment being levied thereon to pay for such benefit, and that the cost of such improvement, resulting in such benefits to these lands, is assessed against the land of the plaintiffs. The question whether the lands in Canada are materially benefited by the construction of this drain is not conceded by the appellants. In fact, it is strenuously insisted by them that these lands will only be benefited to a trifling extent. The engineer, in his report, states in respect to the amount of land to be benefited in Canada, as follows: "There is a very small amount of land between the interna cific Railway, six miles north, that may possibly be benefited to a small extent, but this land is very alkali and also very stony, and would be practically of no value, even if it was drained. The land north of the Canadian Pacific Railway in Canada down to the North Antler creek, the terminus of our proposed drain, lies so much higher than the stream does that there will be no benefit accruing to this land." The drainage board, acting under such report of the engineer, considered this question of the amount of land to be benefited in Canada, and found, after investigation, that there was but "a small acreage to be benefited incidentally thereby." There is much force in appellant's contention that this finding of the board is conclusive on all persons making only a collateral attack on that finding, as in this case. However, the rights of the parties on this appeal will be determined on the theory that the lands on the north side of the boundary line will be materially benefited by the construction of this drain. The trial court was impressed with the fact that such lands will be materially benefited, and held all the proceedings void, for the reason that the cost of constructing the drain on the north side of the line was assessed against the lands of the plaintiffs and other owners of lands benefited in McHenry and Bottineau counties, and that none of the cost was assessed against the lands benefited on the north side of the boundary line. This conclusion of the trial court was reached upon the assumption that assessments must be equally borne by the land in proportion to benefits to all the benefited land, whether within the district or beyond the limits of the district. It is true that the intentional omission from assessment for benefits, of land benefited, in a drainage district, will sometimes wholly vitiate the whole assessment, although there is a large discretion vested in drainage boards as to what benefits are to be assessed, and this discretion will not, except in case of fraud or abuse, be interfered with. No question of willful omission of lands within the drainage district is presented in this case, and the general rule applicable in such cases it is not necessary to define. In this case, the land in Canada was not assessed for benefits, and could not, under any circumstances, be assessed for benefits by the drainage boards of Bottineau and McHenry counties. The power to assess such lands rests wholly with the authorities in the Dominion of Canada. The question is therefore presented: Must all these contemplated improvements be abandoned for the reason that assessments of benefits accruing to lands in Canada are impossible, because the drainage board possesses no authority to levy assessments beyond the limits of its district? The improvement in this case is not undertaken for the benefit of the owners of land situate in Canada. The sole purpose of the For these reasons, the order is reversed, and the cause remanded to the district court for further proceedings. own lands, situate in Bottineau and McHen- not assessed for benefits, which it is imposry counties. It clearly appears that the ex- sible legally to assess, is not a tenable proppenditure, although large, does not exceed osition as a matter of law. In cases like the the aggregate benefits. The ratio of the as- one under consideration, we do not think sessment per acre is very small compared to the principle of willful omission from assessthe benefits that will accrue to the land, if ment should have any application. If it the project can be maintained. It being un- were to be enforced in cases like the present, disputed that the purpose of the proceedings it would result in defeating beneficial drainis to benefit lands in Bottineau and McHenry age projects, and make the securing of outcounties, should the fact that lands beyond lets outside of drainage districts impossible. the limits of these counties, in Canada, are materially benefited nullify all the proceedings and subject them to be perpetually restrained? The trial court so held upon the general principle of law before stated, relying upon the case of Masters v. Portland, 24 Or. 161, 33 Pac. 540, as sustaining that principle. That case was in reference to a different state of facts. Lands within the assessment district were willfully, arbitrarily, and intentionally omitted from the assessment, although materially benefited, and benefited equally with the assessed lands in the same district. No such question is presented here, inasmuch as it was beyond the pow-the question is tainted with the impreser of the drainage board to include the lands in Canada in the assessment or apportionment of benefits. The respondent also relies on Fraser et al. v. Mulany et al., 129 Wis. 377, 109 N. W. 139, to sustain this contention. SPALDING, J. (dissenting). I regret my inability to concur in the above opinion. I have no doubt the construction of the proposed drain would be of great benefit to the lands affected, but that fact furnishes no warrant for its construction under the present proceedings and law, unless such proceedings are in conformity with the law and the law is applicable to the situation. It seems that the atmosphere surrounding sion that the law must provide a means of draining all lands needing drainage, and that it must be so construed as to apply to all possible contingencies arising, in the efforts made to furnish relief to the owners of such land. The remedy for its failure to make provision for all contingencies lies with the Legislature, and not with the courts. I shall briefly state my reasons for concluding that the drainage law is not applicable to this case, but if it is, the proceed That case also presents a question of the intentional omission of benefited lands from assessment, which was within the jurisdiction of the assessing body. It is not therefore in point under the facts of this case. No other cases are cited on this point. The direct object sought in these drainings are not in conformity with the law. proceedings is to improve the lands within the drainage district as petitioned for. It is undisputed that the total benefits to the lands within the district in Bottineau and McHenry counties exceed the total cost of the improvement in these counties as well as in Canada. Work is to be done in the Dominion of Canada for the express purpose of benefiting land within the drainage districi in said counties. The benefit to the lands in Canada is one of the indirect or incidental results of the work absolutely necessary to be done for the improvement of the lands in these counties. The situation is the same. and presents a similar question as would be presented if the drainage board in these counties was compelled to go into Canada to secure stone, or some other material necessary to be used in improving the river bed in Bottineau county, and the removal of such material from Canada materially benefited a large tract of land in Canada. No doubt of the power of the board to secure such material would be entertained. It would not be contended, seriously, that the land in Canada must be assessed for these benefits proportionally, or the proceedings be subject to a restraining order. There is no more reason for holding an assessment unauthorized in one case than in the other. To claim that 1. The petition in this case, as applied to Bottineau county, which is the county bordering on the international boundary, requests that the drain "commence at the south side of Bottineau county, in the center of the Mouse river channel and dredge the river north to the international boundary line, thus reclaiming the lowland adjoining the river on each side." It will thus be seen that the petition established the starting point and terminus of the proposed drain at the south and north lines of Bottineau county, respectively. Section 1821, Rev. Codes 1905, as amended by chapter 93, Laws 1907, as far as relates to this subject, reads: "A petition for the construction of a drain may be made in writing to the board of drain commissioners, which petition shall designate the starting point and terminus and general course of the proposed drain." Authority is given to the drainage commissioners, under the advice of the surveyors, to vary from the line described in the petition, but no authority is given to vary the source and terminus of the drain. I would not contend that a slight variation would invalidate the proceedings, but the question involved in this case is not any immaterial variation, but it is as radical as though the drain were located by the commissioners 14 miles west |