Campbell v. Youngson

• Decision Date: 18 December 1907
• Docket Number: 14,847
• Citation: 114 N.W. 415,80 Neb. 322
• Parties: NATHAN CAMPBELL, APPELLANT, v. PETER J. YOUNGSON ET AL., APPELLEES. [*]
• Court: Nebraska Supreme Court

114 N.W. 415

80 Neb. 322

NATHAN CAMPBELL, APPELLANT, v. PETER J. YOUNGSON ET AL., APPELLEES. ^[*]

No. 14,847

Supreme Court of Nebraska

December 18, 1907

APPEAL from the district court for Kearney county: ED L. ADAMS JUDGE. Reversed. Decree for plaintiff.

Reversed. Decree for plaintiff.

H. M Sinclair and J. L. McPheeley, for appellant.

L. C Paulson and C. P. Anderbery, contra.

Robert E. Evans and John V. Pearson, amici curiae.

OPINION

LETTON, J.

The plaintiff, who is the owner of a certain tract of land in Kearney county, brought this action against the defendants, Peter J. Youngson and others, as constituting the board of supervisors of Kearney county. The petition, in substance, alleges that a petition was presented to the county board of supervisors under the provisions of the drainage act passed and approved February 28, 1881, asking that a drainage ditch be constructed over and across plaintiff's land; that the board procured the same to be surveyed, and has ordered its construction across his land, and intends to pay the cost of construction by special assessment made against the lands claimed to be benefited. He alleges it will take more than four acres of his land, and will greatly injure the remainder of the tract, and that no provision has been made to compensate him. He further alleges that there are no marsh or swamp lands contiguous to the proposed ditch, but that its only purpose is to arrest the natural flow of surface water and divert the same from its natural channel and cast it upon and across his land; that the statute confers no jurisdiction upon the board to take lands for the purpose of diverting surface water and alleges a number of other reasons for the claim that the board is without jurisdiction. He asks a perpetual injunction to restrain the threatened action. The answer, in substance, pleads that the board had jurisdiction in the premises; that the land proposed to be drained is marsh or swamp land, and that the object of the ditch is to drain the same and render it fit for agricultural purposes, to benefit the public roads, and to promote the health and general welfare of the inhabitants of the district. A trial was had, and a decree rendered dissolving the injunction and dismissing the action, and from this judgment the plaintiff appeals.

Generally, where the determination of a matter has been referred to the consideration of a particular administrative board or officer, and no appeal is provided for from such decision, its order or determination is final, and will not be subject to collateral attack. In Andrews v. Lillian Irrigation District, 66 Neb. 461, 97 N.W. 336, it was held that the question whether land will be benefited by an irrigation system and the creation of the irrigation district is exclusively for the county board, and is conclusive in a collateral proceeding. In Dodge County v. Acom, 61 Neb. 376, 85 N.W. 292, and in Tyson v. Washington County, 78 Neb. 211, 110 N.W. 634, the same principle was stated and upheld with reference to the determination of the county board that the construction and establishment of a drainage ditch would be conducive to public health, convenience or welfare, and as to whether or not the route thereof is practicable. In the latter case it is said: "We think that no authority can be found holding that the policy or expediency of constructing any such public work, the exercise of discretion as to which is vested in any administrative board or official, can, in the absence of statutory permission, be interfered with or tried by the courts." Under this principle, therefore, and under the facts presented in this case, the only question necessary to determine is whether the county board possessed jurisdiction to order the proposed improvement. If it possessed the requisite authority, injunction will not lie on account of mere irregularities in the exercise of the power. The determining factor in this case with reference to this question is whether or not the lands proposed to be benefited by the improvement and to be assessed to pay the cost of the same are within and of the class, or are of the nature with reference to which power is conferred upon the county authorities to act, or, in other words, whether the board had jurisdiction of the subject matter. In order to determine this, a brief description of the locality where it is proposed to construct the ditch is necessary. "Whiskey slough" is a stream of water which flows eastwardly through a somewhat shallow and tortuous channel about two rods wide and three or four feet deep close to the northern boundary of Kearney county. Its general course is parallel with that of the Platte river, at a distance from the south bank thereof varying from a few rods to nearly a mile, it being farthest from the river at a point near the south line of plaintiff's land. The territory through which it runs its entire course is the nearly level bottom of the river valley, which is here several miles wide and which has a nearly uniform slope or inclination to the eastward of about seven feet to the mile. The volume of water within its banks rises and falls substantially as does the water in the river, the subsoil between the two streams being of a very porous or sandy nature, so that its flow is usually governed largely by that of the water in the larger stream. The land lying to the southward of the river valley consists of rolling hills, cut up by hollows and ravines, which form natural drainage channels and drain the surface water caused by heavy rains and melting snows toward the river, but which are intercepted at this locality by the bed of Whiskey slough. The plaintiff owns the southwest quarter of section 23 in Blaine township, and, according to the map introduced in evidence, the south line of this tract of land is crossed by Whiskey slough no fewer than seven times in its winding flow toward the east. Near the southwest quarter of this land a ravine or natural drainage channel, having its head or rise in the high ground some seven or eight miles to the southwest, intersects the channel of the slough. This natural waterway or drainage channel known as "Dry creek" drains a large expanse of territory, and in times of heavy rains carries down and discharges at the point where it enters the stream a large volume of surface water, thereby causing the slough, at such times, to overflow its banks and to inundate the almost level lands upon either side, extending from below the mouth of Dry creek to the lower course of the slough. Counsel for the defendants in his brief describes the condition which the proposed improvement is designed to remedy, as follows: "During wet seasons, and especially so during the last four or five years, heavy rains would fill up the two sloughs, Whiskey slough and Dry creek, and, where they join, the slow, sluggish, sinuous and tortuous nature of Whiskey slough fails to properly conduct the waters coming from the two sloughs to the river. By virtue of these conditions, the water would overflow the banks of Whiskey slough and onto the lands adjacent. Because of the failure of Whiskey slough to convey the additional water from Dry creek, its own banks would overflow for a great distance back of its junction with Dry creek, the water being backed up over its banks and on the surrounding country. The land on both sides of Whiskey slough, being of a level nature, the fall being seven feet to the mile or one-fourth inch to the rod, instead of receiving much needed assistance from Whiskey slough in conducting its large amount of surplus rain water into the river, it receives added burdens from the overflow of Whiskey slough. During four consecutive seasons the crops were totally destroyed for a distance of ten or twelve miles east and west along Whiskey slough. This entire territory became a swampy, marshy tract, full of swales and low places, with Whiskey slough, instead of draining it, doing the reverse, feeding it more and more. In this condition, the ground becomes unfit for cultivation when too wet, and, if it ever dries up, again becomes unfit because of its hardened condition."

This is the situation of the lands in question as placed in the light most favorable to the defendants' contention. There is evidence on the plaintiff's side of the case, however tending to prove that much of the trouble that has occurred in later years has been caused by the careless and unskillful manner in which a section line road has been constructed in the locality, by which the channel of Whiskey slough has been...