Imagens das páginas


name of an old ditch, and, by reason of its | could only be done for a public use. location and construction under the laws assume the proceedings which resulted in then and now in operation, it is a public the location and construction of the origwater course. It is expressly so declared inal ditch were conducted as the law reby 4500, Rev. Stat. 1892. In order to quired, and that it was found and recorded procure its original location and construc- by the county commissioners that the ditch, tion, it was incumbent upon the petitioners when constructed, would promote the public therefor, among other things, to state in health, convenience, and welfare. For that their petition, and show at the hearing be- public purpose lands could be, and no doubt fore the commissioners, that the proposed were, appropriated, for which, under our ditch would be conducive to the public Constitution, the owners were entitled to health, convenience, or welfare, and it was compensation and damages; and, if the necessary for the commissioners to find and award of the commissioners was not satrecord that important fact in order to give isfactory, there was a right of appeal to the them jurisdiction to establish the ditch. probate court, where the landowner could be Such a finding was essential because the heard before a constitutional jury as to improvement petitioned for contemplated such compensation and damages and other the appropriation of private property, which questions. The statutory provisions fur


a landowner, to be by him kept in repair, is valid, although no personal notice is given him of the time and place to hear objections there to, as required by statute, when he voluntarily appears and presents his objections. Hendricks County v. Trotter, 19 Ind. App. 626. 49 N. E. 976.

Where an attempted allotment for ditch repairs is void for failure to give the necessary notice, the proper officers may proceed to make a valid one, and need not proceed under the provisions of the statute governing the mak ing of allotments when the first one is found to be inequitable. Hille v. Neale, 32 Ind. App. 341, 69 N. E. 713.

The duties imposed by law on county surveyors to reallot county ditches to the various landowrers for repair, and to inspect and accept completed allotments, although requiring the exercise of judgment and discretion, do not impose upon that officer a judicial function within the meaning of the constitutional prohibition against the imposing of judicial functions upon ministerial officers. Ellis V. Steuben County, 153 Ind. 91, 54 N. E. 382.

The duty of repairing a ditch is not cast upon the landowner by a provision that he shall keep it open through his land, which means no more than that he shall not fill it up, or allow it to be filled up. Lile v. Gibson, 91 Mo. App. 480.

An assessment on land for the cost of repairing the owner's allotment of a public ditch is invalid and unenforceable where no notice by copy of the making of the allotment was served upon the owner as required by law, rendering the allotment without jurisdiction and subject to collateral attack. Beatty v. Pruden, 13 Ind. App. 507, 41 N. E. 961.

A landowner failing to repair his share of a public ditch within the time specified in a statutory notice is liable for a tax imposed on account of the repairs being made by the trustee of the ditch, although the trustee agreed that the landowner might complete the repairs after the time limited by the notice had expired. Davison v. Campbell, 28 Ind. App. 688, 63 N. E. 779.

The drainage laws of Illinois authorize the drainage commissioners to raise money by assessment upon the lands within drainage districts for use, under the direction of the court, in repairing or maintaining ditches outside as well as inside the district, where such outside drains are necessary for the protection of the

lands, and the ample drainage of the same, within such districts. Briggs v. Union Drainage Dist. No. 1, 140 III. 53, 29 N. E. 721.

The assessment.

The court cannot make and levy an assessment for annual benefits upon lands in a drainage district, for keeping the improvements therein in repair, where the statute under which the district was organized requires such assessments to be made by a jury, and nowhere authorizes the court to do so without a jury,especially where such assessment is made without notice to the landowners, and no opportunity is given to them to be heard in the matter. Robeson v. People, 161 III. 176, 43 N. E. 619.

A township trustee is not estopped from making an assessment on lands benefited by repairs to a public ditch because eighteen months elapsed from the completion of the work to the making of the assessment, in the absence of any statutory provision as to time, where the cost of such repairs has been paid out of the public treasury, and it does not appear that the work was not necessary, or that the trustee acted in bad faith, and the rights of parties have not been changed or those of third parties affected by the delay. Geiger v. Bradley, 117 Ind. 120, 19 N. E. 760.

Drainage commissioners of drainage districts organized under the Illinois farm drainage act have the right to use funds on hand to repair work already done, or more fully to protect the lands of the district; but if there are no funds on hand, they must first make a new tax levy before contracting additional indebtedness. They cannot make an assessment to meet a prior indebtedness. First Nat. Bank v. Union Dist. No. 1, 82 Ill. App. 626.

The authority of the county clerk to extend the drainage tax is the certificate of the commissioners, and, unless, a valid certificate is on file, he is powerless to extend the tax. And to render the tax valid the certificate of the commissioners requiring its levy must conform to the provisions of the statute, stating for what purposes the tax is to be levied. People ex rel. Trobaugh v. Glenn, 207 Ill. 50, 69 N. E. 568. The court says that, under the statute. the taxpayer has the right to be informed for what purposes his property is to be taxed, and that the statute provides that the amount raised for the payment of interest on indebtedness

nished the owner of lands taken for the ditch a ready and convenient remedy for the enforcement of the constitutional guaranties for the protection of his rights. No doubt the landowners who desired to do so availed themselves of all these provisions made in their behalf.

Another observation is likewise pertinent. Our ditch laws are the exercise of police power committed to the general assembly. This was held in Sessions v. Crunkilton, 20 Ohio St. 349. The proposition there stated is that the construction of drains by townships in cases where the public health, convenience, and welfare demand it, is within the meaning of "police powers" mentioned in § 7 of article 10 of our state Constitution. The means of promoting and conshall be kept separate from the balance of the amount raised.


serving the public health and welfare provided by legislation are so provided in the exercise of the police powers existing in the general assembly. And § 3, now involved, prescribes one of the methods of promoting the public health, convenience, and welfare. It reads: "Provided, however, that when a ditch needs to be cleaned out, any resident owner of any tract of land which was assessed for the construction may make a sworn statement to the county auditor, in writing, setting forth such necessity. And when said written sworn statement is made within three years from the original construction, or for material improvement by deepening and widening said ditch, and as often thereafter as may be necessary to keep said ditch in good re

Rights of landowner.

A statutory provision that notice of the time and place of letting contracts for the work of widening or extending a drain be served upon every person whose lands are affected by such assessment does not require such notice to be given in a proceeding to clean out a drain. Lanning v. Palmer, 117 Mich. 529, 76 N. W. 2.

Although notice of some kind is required preparatory to a final assessment of benefits on lands for the repair of a public ditch, is rests with the legislature to determine what it shall be, provided landowners are not thereby subjected to unreasonable inconvenience and em barrassment. Weaver v. Templin, 113 Ind. 298, 14 N. E. 600.

A provision in a drainage law authorizing county surveyors to repair public ditches and assess the cost thereof upon the lands adjudged by the court to have been benefited by the original construction in proportion to that assessment is not unconstitutional as the taking of property without due process of law because no notice is required to be given landowners of the intention to make repairs or assessments. where notice of assessment after it is made is provided for, and opportunity is given to appeal therefrom to a court having jurisdiction to determine whether the amount expended was in fact for repairs, and whether the repairs were made in good faith and according to law. Johnson v. Lewis, 115 Ind. 490, 18 N. E. 7.

A provision in the drainage law making it the duty of county surveyors to keep ditches in repair, and giving the power to assess the cost upon the lands adjudged benefited in the original proceedings establishing such ditches, is not unconstitutional as depriving such property owners of their property without due proc ess of law, where provision is made for notice to them of the assessment, and for an appeal by any person aggrieved. Fries v. Brier, 111 Ind. 65. 11 N. E. 958.

A section in the statute authorizing township trustees to keep the drains in their townships in repair and free from obstructions to determine the necessity for such repairs and removals and the cost thereof, and to apportion and assess such cost upon the lands which, in their judgment, will be benefited thereby

in the proportion of such benefits, which assessments are a lien upon such lard, by ex parte proceedings, without giving the owners of the lands affected an opportunity to be heard, and making no provision for appeal,--is unconstitutional and void as repugnant to the provision of the Bill of Rights that every person shall have remedy by due process of law for injury to his person, property, or reputation; also as violating the provision of the Federal Constitution prohibiting the depriving a person of life, liberty, or property without due process of law. Campbell v. Dwiggins, 83 Ind. 473.


Landowners are not estopped to contest the validity of an assessment on their lands for the

repair of a noncompleted public ditch by standing silently by with full knowledge, and allowing the work to be done without objection, where the assessment is absolutely void because the officer making the repairs had no jurisdiction of the ditch before its completion and acceptance. Morrow v. Geeting (Ind. App.) 37 N. E. 739.

One assessed for the deepening and widening of a ditch which the trustees had no authority to order, under a petition merely for the cleaning out of a ditch, is not estopped to object after the work is done. Deuyer v. Shonert, 1

Ohio, C. C. 73.


One who petitioned for the cleaning out of a drain and acquiesced in the work, cannot avoid payment of the expense on the ground of mere irregularities in the proceedings. Lanning v. Palmer, 117 Mich. 529, 76 N. W. 2.

How far court may review and control proccedings.

The limitation of the questions to be tried upon appeal by a landowner from an assessment for the repair of a public ditch by a county surveyor, to a determination of the cost of the repair and what amount thereof should be assessed against the owner's land, does not, in view of the fact that it is only through the medium of such an appeal that aggrieved landowners may make objections to the proceedings, prevent the examination, as preliminary and incidental to the trial on its merits, of questions

notify the county surveyor to examine the said ditch, who shall go without unnecessary delay, upon the line thereof, and make an estimate of the amount of money required therefor and fix the portion thereof that the owner of said tract of land and each corporation, county, or township as sessed for the construction of the ditch, shall be assessed for such cleaning out; and such assessment shall be made according to the benefits; unless the necessity for the cleaning out arose from the act or neglect of some landowner or corporation, in which case such act or neglect shall be considered. Said county surveyor shall return his estimate and assessment to said auditor in writing, who shall appoint a day for hearing the same, and direct said county surveyor to give notice thereof to each owner of land and corporation affected thereby when said auditor may make such changes therein as he may deem right and proper; he shall enter upon a journal to be kept for that purpose the assessment as approved by him, and he shall place such assessment upon the duplicate against the land, upon which they are assessed, to be collected as other taxes; the work of cleaning out the ditch shall be advertised, sold, and let, and the contracts therefor performed, as provided in this chap

pair, said county auditor shall forthwith | ter; the contractor shall be paid, by warrant of the county auditor upon the county treasurer, out of the assessments so made. and paid upon the certificates of said county surveyor, that he has performed his contract; but if at the presentation of any cer tificate all the assessments have not been paid, payments shall be made thereon pro rata." This section was amended April 22. 1904, by changing the latter part to read as follows: "The contractor shall be paid by warrant of the county auditor upon the county treasurer, out of any funds in the treasury applicable to such purpose. When the whole contract is completed the entire price may be paid in the manner aforesaid." 97 Ohio Laws, p. 262.

Section 3 is one of many comprising an act entitled "An Act to Provide for the Cleaning Out and Keeping in Repair of Publia Ditches, Drains, and Water Courses, and to Repeal an Act passed April 13, 1900," and certain other sections. 94 Ohio Laws, p. 142. The purpose of the entire act, as its title indicates, is to regulate cleaning out and keeping in repair the ditches which have been established by county commissioners or township trustees, embracing the removal of obstructions and restoration and repair of flood gates. Surely it is within the police power of the general assembly to State ex rel. French v. Johnson, 105 Ind. 463, 5 N. E. 553.

relating to the competency of the surveyor to make the assessment, and kindred questions. Markley v. Rudy, 115 Ind. 533, 18 N. E. 50.

Upon appeal by a landowner from an assess ment for the repair of a public ditch by the county surveyor, under a statute limiting the questions to be tried on appeal to a determination of the cost of the repairs and what amount thereof should be assessed against the owner's land, it is proper to determine whether his land is subject to any assessment for such repairs; and, hence, the validity of such an assessment cannot be collaterally attacked on the ground that the land was not subject, under the stat ute, to any assessment. Kirkpatrick v. Taylor, 118 Ind. 329, 21 N. E. 20.

The question whether a county surveyor, acting within the scope of his authority in repairing a public ditch, adopted the best or cheap est plan for its performance, is not open to inquiry on appeal from an assessment made by him for the cost thereof; and, in the absence of statutory provision requiring him to adver tise for bids, he may hire the work done by the day, if no fraud or collusion intervenes. Scott v. Stringley, 132 Ind. 378, 31 N. E. 953.

That provision in an act requiring county supervisors to keep public ditches in repair at public expense, and for an assessment on the lands affected in proportion to the original assessment thereon for the construction of the ditch, to reimburse the county treasury, which limits the questions to be tried upon appeal by an aggrieved landowner to a determination of the cost of the repairs and what amount of such cost should be assessed against such owners' land, is not in derogation of the constitutional rights of such owner to have his day in court.

The statement of the commissioners, in the certificate of levy, that a tax is for the purpose of repairing the drainage ditches, is not conclusive; but the courts may determine the question from the facts. People ex rel. Munsterman v. McDougal, 205 Ill. 636, 69 N. E. 95.

Equity will relieve a landowner from the payment of an assessment for the repair of a public ditch on the ground that the officer whose duty it was to make such repairs had exceeded his authority by enlarging the ditch beyond its original dimensions, and that the proceedings establishing a connecting ditch, which furnished an outlet for the repaired ditch, had been declared void, rendering the repaired ditch val ueless and the repairs of no benefit, where such landowner had no knowledge, and was not charged by law with knowledge, of the worthlessness until after the expiration of the time to appeal from the assessment. Millikan V. Wall, 133 Ind. 51, 32 N. E. 828.

The court will not restrain the collection of an assessment on land for the repair of a ditch upon a ground for which adequate remedy is provided by appeal from the assessment. Goff v. McGee, 128 Ind. 394, 27 N. E. 754.

An injunction will not lie to restrain the collection of an assessment against a railroad right of way for the cost of repairing a public ditch by a county surveyor, who is invested with the statutory power to repair public ditches and to assess the cost thereof against the lands originally assessed for its construction. and from whose assessment the right of appeal is given, unless it is affirmatively shown that the acts of the surveyor are not merely errone

designate certain officers of a county or township who may, in a prescribed mode, upon application and due notice to parties interested, restore our public drains and water courses to their original condition. Judicial authority is not essential, for all parties in interest were auly heard before the tribunal appointed by law when the original construction was ordered.

The petition charges that the section quoted violates § 19 of article 1 of the state Constitution, which, in part, reads: "Private property shall ever be held inviolate. but subservient to the public welfare, and in all other cases where private property shall be taken for public use a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury without deduction for ben-struction would be conducive to the public efits to any property of the owner." We health, convenience, and welfare. We say are unable to see how the statute assailed this because the law required the petition to conflicts with this fundamental law. The so allege and the commissioners to so find property occupied by the ditch was taken before the ditch could be legally established. by its original construction when the par- The questions settled by the original proceedties along its line whose lands were taken ings imply that to subserve the public good had ample opportunity to obtain compensa- the ditch should remain open and free from tion; and if they applied for the same we obstruction. Hence, the questions concernmust assume their applications were con- ing the public health, convenience, and welsidered, and proper awards made. But the fare have been once settled, and need not be proceeding to clean out the original channel reasserted in the new proceeding.


ous, but absolutely void and without any au thority. Terre Haute & L. R. Co. v. Soice, 128 Ind. 105, 27 N. E. 429.

A railroad company cannot enjoin the collection of an assessment upon its right of way for the cost of repairing a public ditch upon the ground that the ditch, as originally established and constructed, was not rightfully located upon its right of way, and that no right existed to go upon such land for the purpose of making repairs; as that question cannot be brought up in a collateral attack,-especially where the company acquiesced in the location and construction of the ditch on its right of way. Davis v. Lake Shore & M. S. R. Co. 114 Ind. 364, 16 N. E. 639.

under § 3 does not seek or attempt to appropriate any lands of the defendants in error. Its sole purpose is to restore the water course to its former condition of usefulness. There is nothing for which the landowners are entitled to any compensation, for they part with nothing. The petition also alleges that the section is unconstitutional, "for the reason that no discretion is given to any officer, board, or tribunal to determine or decide whether the improvement . . . is for the public health, convenience, and welfare, but makes the duties to be performed under said act mandatory upon said auditor and surveyor." Again we think the section is misconstrued. When the ditch was established originally, it was alleged by the petition and determined by the commissioners that the ditch was necessary and its con

Liability for nonrepair.

The owner of land across which a drain passes onto adjoining land is liable if, by reason of the poor repair of the portion of the drain which crosses his premises, any of the sewage escapes and flows onto the adjoining land, even though he did not know of the existence of the drain; it being his duty to keep the sewage which he was himself bound to receive from passing from his own premises to the adjoining premises otherwise than through the drain. Humphries v. Cousins, L. R. 2 C. P. Div. 239.

The occupier, and not the owner, of premises is prima facie liable for injuries to adjoining lands arising from a failure to cleanse and repair drains and sewers located on the premises. Russell v. Shenton, 3 Q. B. 449.

A covenantee for the use of a public drainage canal cannot escape from his obligations thereunder, because of the omission of the other

parties to repair the lower portion thereof; since his covenant points out the remedy for such misuser of their franchise. Norfleet v. Cromwell, 70 N. C. 634, 16 Am. Rep. 787.

One who contracts to construct part of a box drain which, after crossing the lands of his neighbor, enters his premises, is liable for damages arising from his failure to open an outlet below the drain to carry off the water, whereby work upon the drain is prevented. Britten v. Dunning, 55 Mich. 158, 20 N. W. 883.

Certification of cost.

The power conferred on county surveyors by a statute making it their duty to keep public ditches in repair, to certify the cost of such repairs as well as the amount of their own per diem to the county auditor, is not judicial, but merely a discretionary power, and such as the legislature has the power to confer upon administrative and ministerial officers. State ea rel. French v. Johnson, 105 Ind. 463, 5 N. E. 553.

Repeal of law.

A right to enforce the collection of the costs of repairs of a pubile ditch against lands, under the law existing at the time a contract therefor was entered into and part of the work done, is not lost by a repeal of that law, by virtue of a general law providing that repealed laws shall remain in force for the purpose of sustaining actions to enforce liabilities incurred thereunder, and also by the constitutional provision forbidding the passage of any law impairing the obligation of contracts. Crawford v. Hedrick, 9 Ind. App. 356, 36 N. E. 771. H. P. F.

the auditor are not conclusive upon the interested parties. It is true there is no provision in the section for appeal or prosecuting error, and, if the rights of the parties are concluded by the findings of the auditor, the property of defendants in error might be taken without due course or due process of law. But they are not so concluded. For cases arising under the general ditch laws we have § 4491, Rev. Stat. 1892, but it may not cover the special proceedings before us. But § 5848, Rev. Stat. 1892, which is a part of our Code of Civil Procedure, does apply. and furnishes an ample remedy to vindicate any right the landowner may have to urge against the assessment. This section provides: "Courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of taxes and assessments, or the collection of either, and of actions to recover back such taxes or assessments as have been collected, without regard to the amount thereof." This section furnishes due course or due process of law. Under its provisions the courts of the state are open for the redress of any wrongs that may be done by taxation or assessments. The defendants in error have availed themselves of this remedy in the very case before us.

In Alder v. Whitbeck, 44 Ohio St. 571, 9 N. E. 680, Minshall, J., after discussing authorities and the section of the Constitution we are considering, and also the 14th Amendment of the Federal Constitution, says: “By these decisions such laws may be in harmony with that amendment [the 14th], though they do not provide for giving a party an opportunity to be present when the tax is assessed against him, and to be there heard, if they give him the right to be heard afterward in a suit to enjoin the collection, in which both the validity of the tax and the amount of it may be contested; and it is immaterial to this question that the party to the suit is required, as in other injunction cases, to give security when instituting the suit." The learned judge cites McMillen v. Andreison, 95 U. S. 37, 24 L. ed. 335; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616. To these we add Kilbourn v. Thompson, 103 U. S. 182, 26 L. ed. 384; Kelly v. Pittsburgh, 104 U. S. 79, 26 L. ed. 659. We cite State ex rel. Poe v. Jones, 51 Ohio St. 492-513, 37 N. E. 945. The latter case discusses and decides that § 5848 provides due course of law in cases of taxation and assessment.

In Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663, it appears that the legislature of California passed an act establishing a general system for reclaiming swamps

The petition also complains that, if the assessments made by the auditor become liens on the lands, and are enforced, the landowners will be deprived of their property without due process of law. While it is not cited by counsel or by the circuit court, we presume that § 16 of article 1 of our Bill of Rights was in contemplation when the proposition was made. It provides that "all courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law; and justice administered without denial or delay." Section 3 of the act involved provides that when the sworn statement of the resident landowner is filed with the auditor he shall notify the county surveyor to examine the ditch, and for that purpose to go upon its line, and make an estimate of the amount of money required for the cleaning out, and fix the portion that each landowner who was as sessed for the original construction of the ditch should be assessed for the improvement, which new assessment must be made according to the benefits. The surveyor must return the result of his examination and his estimate to the auditor, who shall appoint a day for the hearing of the report, of which due notice shall be given. The auditor is authorized on the hearing to make such changes in the assessment as he deems just, and, when corrected and confirmed, the assessment is placed on the duplicate. The work shall be advertised and publicly let. Notwithstanding the assertion of the defendants in error, we think the surveyor, if he finds upon his examination that the ditch does not need cleaning out, is authorized and would be expected to so report to the auditor, and that his judgment is not so fettered as counsel imagine that he must report in favor of an assessment. If on the hearing before the auditor the latter should find that cleaning out is not necessary, he may so declare, and act accordingly by refusing to place any assessment upon the property along the ditch. The statute is not so onesided as counsel contend when it is fairly construed with relation to the subject-matter. The petition for the injunction alleges that on the day of hearing "said auditor heard all proof offered by the parties affected by the proposed cleaning out of said ditch, and found that the same [the assessments] were in all respects fair and just according to the benefits." We are of opinion that the legislature can constitutionally confer upon the surveyor and auditor the powers prescribed in § 3, and, according to many authorities, the exercise of such powers in accordance with the act is due process of law. However, the hearing and findings by

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