Cache River Drainage Dist. v. Chicago & E.I.R. Co.

• Decision Date: 26 October 1912
• Citation: 99 N.E. 635,255 Ill. 398
• Court: Illinois Supreme Court
• Parties: CACHE RIVER DRAINAGE DIST. v. CHICAGO & E. I. R. CO.

255 Ill. 398

99 N.E. 635

CACHE RIVER DRAINAGE DIST.

v.CHICAGO & E. I. R. CO.

Supreme Court of Illinois.

Oct. 26, 1912.

Appeal from Massac County Court; W. F. Smith, Judge.

Assessment proceeding by the Cache River Drainage District against the Chicago & Eastern Illinois Railroad Company. From a judgment confirming an assessment of benefits, the railroad company appeals. Reversed and remanded.Homer T. Dick, of Chicago, and C. L. V. Mulkey, of Metropolis (E. H. Seneff, of Chicago, of counsel), for appellant.

S. A. Van Kirk, of Vienna (George E. Martin, of Mound City, and Courtney & Helm and S. Bartlett Kerr, of Metropolis, of counsel), for appellee.

DUNN, C. J.

The county court of Massac county rendered a judgment confirming the verdict of a jury assessing benefits to the right of way of the Chicago & Eastern Illinois Railroad Company in the Cache River Drainage District, and the railroad company has appealed.

The commissioners' roll described the right of way as containing 17.36 miles and assessed it for benefits at $500 a mile, making a total of $8,680. It was admitted on the trial that there were only 13.68 miles of the right of way in the district, and the total amount of benefits assessed by the jury was $6,840, being $500 a mile. The railroad company objected to the commissioners' roll because its assessment exceeded the benefits it would receive and also exceeded its proportionate share of the cost of the improvement. Henry Korte, a landowner, objected to the railroad company's assessment as lower than its proportionate share of the cost of the improvement. His attorneys were the attorneys for the drainage district.

The Cache River Drainage District comprises lands situated in the counties of Union, Johnson, Pope, Pulaski, and Massac, and contains about 68,000 acres of land which was assessed for benefits, besides about 75 miles of public highways, and about 37 miles of railroad belonging to the Illinois Central Railroad Company, the Chicago, Burlington & Quincy Railroad Company, the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and the appellant. It includes all the lands of the Cache river basin, which extends from east to west through the district 30 miles between the Ozark hills on the north and the bluffs north of the Ohio river on the south, though the tortuous course of the water is much longer. The Cache river, which carries off the water from this basin, flows sluggishly through the district in a southwesterlydirection and leaves it at Ullin, on the western boundary, finally reaching the Ohio river above Cairo. This river has very little fall, the basin is covered with a series of ponds, lakes, sloughs, and bayous, and in seasons of heavy rains the lowlands are covered, to a depth of ten feet or more, with water which runs off slowly. The appellant's railroad has two branches through the district and is built on embankments, which there is evidence tending to show have never been submerged, though the water has sometimes risen to within a few inches of the ties. Five and a half miles of its track is entirely above the water and is never disturbed by it. Prominent features of the proposed improvement of the district are the building of a levee at the east end to prevent the overflow waters from Big Bay creek from entering the district; the construction of what is called ‘Post creek cut-off’ at a point near the center of the district, which will give an outlet for a part of the water to the Ohio river through a channel four miles long; and the construction of a cut-off at the western boundary of the district to improve the fall and channel of the river at that place.

[1] The appellant contends that it is assessed $500 a mile for benefits for every mile of its track in the district, while it is admitted or established by the evidence that 5 1/2 miles of its track receives no benefits at all. The verdict does not, however, find that each mile is benefited $500. It contains in separate items the description of the different portions of the appellant's track in various sections, followed by the number of miles in each portion but with no separate assessment against any portion. The number of miles of the various sections are added together, making 13.68, and the total amount of benefits ($6,840) is then carried out against the whole mileage. This is $500 a mile, but no sum is assessed against any particular mile. The total benefits are extended against the whole right of way in the district. The assessment of benefits to the right of way as an entirety is not objectionable, though a particular part of the right of way, taken by itself, would not be benefited, provided the benefits assessed do not exceed the benefits to the whole right of way.

It is contended that the amount assessed against the appellant exceeds the amount of its benefits. On this question the commissioners' roll is made by the statute primafacie evidence for the commissioners, which entitled them to judgment in accordance with the assessment unless overcome by other evidence. Various witnesses for the appellant testified that the proposed improvement would not be any benefit to the appellant; other witnesses testified to the contrary. Witnesses testified about the character of the appellant's track, bridges, and embankments; the time, character, and extent of the floods; the height to which the water rose on the appellant's embankments and the effect of it; the nature of the improvement intended to be made and the effect it would produce. No amount of benefits was fixed by any witness except one. The commissioners' report fixed an amount, and the appellant's witnesses fixed none, because they said there were no benefits. The evidence was conflicting, and since the judgment must be reversed for errors of law we express no opinion as to its weight.

[2] It is also contended that the benefits assessed exceed the appellant's proportionate share of the estimated cost, and in this connection it is said no acre of farm land was assessed more than $3.08 an acre, and no acre of appellant's land, lying at the side of it and identically the same kind of land, is assessed less than $41.66...