When the cause came on for trial it was submitted to the court for determination upon the pleadings and the following stipulation of facts, namely:

1. That the quarter corner in question, as established by the government survey, had become lost.

2. That the survey made under the directions of the town board of supervisors located the disputed corner at a point "equidistant between the corner of sections sixteen (16), seventeen (17), twenty (20), and twenty-one (21), and the corner of sections eight (8), nine (9), sixteen (16), and seventeen (17), and two thousand six hundred thirty-two (2,632) feet north of the section corner between sections sixteen (16), seventeen (17), twenty (20), and twenty-one (21)" and

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3. "That said quarter corner as established by said survey of the town board is the true quarter corner between said sections sixteen (16) and seventeen (17)."

The stipulation of facts made no reference to the boundary line between the farms of the parties; nor, so far as the record discloses, was any evidence offered tending to show that the parties were or were not bound by the government line, though an issue was made thereon by the pleadings. The court thereafter made findings embodying the facts stipulated, and the plaintiff claims went beyond the stipulation and expressly found and established the boundary line between the adjoining farms. Judgment was entered, following the findings, and not only fixed and located the disputed quarter corner, but established and located the boundary line referred to. This resulted in giving defendant a wedge-shaped strip of land along his south line of which plaintiff had for a number of years been in possession, under a claim that the true boundary line was not at the point fixed by the survey or the judgment of the court. It was his claim that, if the town board survey located the true line, the line claimed by him, and with reference to which he had occupied and improved his land, had become fixed by acquiescence of the parties, and that he had acquired title to this wedge-shaped strip of land by adverse possession.

Thereafter defendant brought an action in ejectment against plaintiff for the strip of land mentioned, which resulted in a judgment awarding it to defendant. Defendant's right to the land was based

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in the main upon the judgment in this action. Krabbenhoft v. Wright, 101 Minn. 356, 112 N. W. 421. We there held that the judgment determining the boundary line was conclusive of the rights of the parties in the adjoining land, so long as it remained of record unmodified. After that action had been remanded to the court below, plaintiff in this action moved the court to eliminate from the findings and judgment herein all reference to the boundary line, and to modify the same so as to confine it to the establishment of the quarter corner in dispute, as stipulated by the parties on the trial. The motion was denied by the trial court solely on the ground, stated in the order, that plaintiff was not entitled to the relief as a legal right and that the court had no discretion to grant it.

We are of opinion that the learned trial court was in error in not disposing of the motion on its merits. If, as plaintiff contends, the findings and judgment went beyond the facts agreed upon and determined a question not covered or intended to be covered by the stipulation upon which the cause was submitted for decision, viz., the boundary line, plaintiff had the right on discovering the fact to appropriate relief, and his remedy was by motion. McClure v. Bruck, 43 Minn. 305, 45 N. W. 438; Hall v. Merrill, 47 Minn. 260, 49 N. W. 980; Nell v. Dayton, 47 Minn. 258, 49 N. W. 981; Chase v. Whitten, 62 Minn. 498, 65 N. W. 84; Cochrane v. Halsey, 25 Minn. 52; Elliott, Minn. Pr. 324. Nor was his right to the relief, if proper to be granted on the facts, there being no intervening rights of third persons, lost by the delay in making his motion. Stocking v. Hanson, 35 Minn. 207, 28 N. W. 507; McClure v. Bruck, 43 Minn. 305, 45 N. W. 438. While the boundary line was made an issue by the pleadings, as well as the location of the disputed quarter corner, it is clear that the parties had the right to eliminate that issue and confine the judgment to be entered to the location of the lost corner. If that was in fact their intention, it appears quite clearly that by some inadvertence or mistake the findings and judgment went beyond the stipulation, and to that extent were unauthorized and may be modified. We held, in construing this judgment (101 Minn. 356, 112 N. W. 421), that the determination of the boundary line in effect adjudicated finally the rights of the parties in and to the adjoining land up to the line so established; but such would not have been the conclusion, had the judgment been limited to the mere establishment of the lost corner. So that, if the fact be that the findings and judgment exceed the relief intended by the parties in their stipulation, plaintiff's motion may to that extent be granted. We express no opinion, however, on the facts. The question whether the motion should be granted, and, if so, to what extent, is a question which must in the first instance be passed upon by the trial court.

Order reversed, and the cause remanded for further proceedings in harmony with the views herein expressed.

GUSTAF MOODY v. HENRY C. BRASIE.1

June 19, 1908.

Nos. 15,570-(136).

Payments on Drainage Contracts.

The proviso at the end of section 17, c. 230, Laws 1905, authorizing partial payments on drainage contracts on the approval of the county auditor and the engineer in charge of the work, construed, and held to authorize such payments without the concurrence or approval of the county commissioners.

Action in the district court for Wright county for an order restraining the auditor of that county from signing and delivering to Charles F. Merz any warrant on the county treasurer for the payment to said Merz in respect to Ditch No. 10 until further order of the court. Upon the hearing of an order to show cause a temporary injunction was denied, and the temporary restraining order was vacated, Giddings, J. From this order plaintiff appealed. Affirmed.

W. H. Cutting and Henry Spindler, for appellant.
James C. Tarbox and J. J. Wooley, for respondent.

BROWN, J.

Appeal from an order refusing a temporary injunction. The facts are as follows:

Proceedings were duly commenced before the board of county commissioners of Wright county for the establishment and construction of a drainage ditch, which resulted in an order laying out the ditch, and a contract for its construction, and the appointment of an engineer to superintend the work. All proceedings in the matter were regular and in conformity with the statutes. The contractor entered upon the performance of his contract, and after the completion of a part of the ditch, less than three-fourths of the entire contract, presented to the engineer evidence of the same, who in turn issued a certificate of approval as permitted by the proviso at the end of section 17, c. 230, p. 321, Laws 1905. Before the presentation of the certificate to the county auditor for his approval, this action was brought to restrain and enjoin further proceedings looking to the issuance of a warrant for the amount then earned by the contractor as shown by the engineer's certificate, on the ground, among others, that the same could not be paid without the approval of the board of county commissioners. An order to show cause why a temporary injunction should not issue was made by the court below, and on the hearing thereof discharged, and the temporary injunction refused. Plaintiff appealed.

Three questions are presented and discussed in the brief of counsel for appellant:

1. Whether the county auditor is authorized under the terms of section 17, c. 230, Laws 1905, to issue warrants on the treasurer upon the certificate of the engineer of a partial performance of the work, where such certificates have not first been approved by the county commissioners.

2. Whether a temporary injunction should not have issued, because of fraud and collusion charged in the complaint between the contractor and the engineer, and

3. Whether the warrants issued by the county auditor should be upon the general revenue fund or upon the ditch fund. Of these questions only the first requires consideration.

The order of the court denying the application for the temporary injunction must be treated as in effect a finding that there was no fraud or collusion between the contractor and the engineer in the respects alleged in the complaint, and as the evidence before us is not conclusive upon that question the decision of the trial court is final. The third suggested question is not an issue made by the pleadings, and is not, therefore, involved in the case.

We come, then, directly to the first question. It is important that the question be determined for the guidance of those charged with the conduct of drainage proceedings, and we dismiss from consideration several points raised by respondent, which, if sustained, would render a decision on the merits unnecessary. The solution of the question involves the construction of the statute above referred to, and also the contract under which the work was performed. The statute provides, in general terms, that it shall be the duty of the engineer, on being notified by any contractor "that his job is completed," to inspect the same, and, if in accordance with the contract, issue a certificate accordingly and report it to the county auditor and the board of county commissioners for their action, and that upon the presentation of such certificate, with the approval of the county board indorsed thereon, the county auditor shall draw his warrant on the county treasurer for the amount shown thereby to be due the contractor. Where the ditch extends into more than one county, payment is divided between the counties affected, and upon the approval of the boards of each county acting separately. Following these general provisions, and as a part of the same section, appears the following proviso:

Provided, however, that the auditor, upon the written approval of the engineer, may issue preliminary certificates for not to exceed seventy-five per cent. of work already done and approved, within the county of which he is such auditor, which certificate shall be treated as hereinbefore provided; but no such certificate shall be furnished except when accompanied by the engineer's written certificate that no loss will result therefrom.

The warrants on the treasurer which defendant is charged by the complaint with intending to draw are in payment of "preliminary