Campbell v. Youngson

• Citation: 80 Neb. 322,114 N.W. 415
• Decision Date: 18 December 1907
• Docket Number: No. 14,847.,14,847.
• Parties: CAMPBELL v. YOUNGSON ET AL.
• Court: Supreme Court of Nebraska

80 Neb. 322

114 N.W. 415

CAMPBELL

v.YOUNGSON ET AL.

No. 14,847.

Supreme Court of Nebraska.

Dec. 18, 1907.

Syllabus by the Court.

Generally, where the determination of a matter has been committed to a particular administrative or legislative 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 a proceeding to establish a drainage ditch, if the county board possesses jurisdiction and authority to act in the premises, injunction will not lie on account of mere irregularities in the exercise of the power conferred.

The doctrine of strict construction of statutes in derogation of common right is not to be so unreasonably extended as to hamper the execution of public enterprises designed for the general welfare, but at the same time property rights of individuals are not to be interfered with unless the power to do so is plainly conferred by the law.

The drainage act of 1881 (Laws 1881, p. 236, c. 51) confers the power upon county authorities to create drainage districts for the purpose of draining “marsh or swamp lands” alone, and does not confer power to change the channel or divert the flow of running streams or natural surface water drains for the purpose of relieving the lands of riparian proprietors lower down the stream from periodical overflows in seasons of freshet.

The term “marsh or swamp lands,” as used in said act, has a wider significance than the terms “marshes” or “swamps.” The power is conferred by this act to drain lands which are not, strictly speaking, “marshes” or “swamps,” but which are “marsh or swamp lands,” meaning thereby lands which are so situated as to be rendered difficult or incapable of successful cultivation by reason of retaining in the soil or carrying on the surface an excessive quantity of water during certain portions of the year, even though at other times they may be as solid, dry, and firm as lands in general.

In considering an amendatory or substituted statute, it is proper to consider the provisions of the law which was repealed in connection with the law which takes its place, in order to ascertain the legislative intent, and all provisions of the original statute which are not carried forward into or repeated in the new law are annulled by the repealing statute.

In order to ascertain the proper meaning of a statute, later as well as earlier legislation upon the same subject may be referred to. All existing acts should be considered, and a subsequent statute may often aid in the interpretation of a prior one.

Under the facts set forth in the opinion, held, that the county board of Kearney county is without jurisdiction to change the channel and divert the waters of the streams mentioned in the opinion from their natural flow for the purpose of preventing overflows, nor has it authority to take part of the plaintiff's land against his will for the purpose of draining the lands embraced within the proposed drainage district.

Appeal from District Court, Kearney County; Adams, Judge.

Action by Nathan Campbell against P. J. Youngson and others. Judgment for defendants, and plaintiff appeals. Reversed.

H. W. Sinclair and J. B. McPheeley, for appellant.

L. C. Paulson, M. D. King, and C. P. Anderson, for appellees.

LETTON, J.

The plaintiff, who is the owner of a certain tract of land in Kearney county, brought this action against the defendants, P. 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 (Laws 1881, p. 236, c. 51), 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 balance 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. Lilian Irrigation District, 66 Neb. 461, 92 N. W. 612, 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 (Neb.) 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 policyor 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. “Whisky 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 furthest 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 towards the river, but which are intercepted at this locality by the bed of Whisky 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 Whisky 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...