Chi., M. & St. P. Ry. Co. v. Lemonweir River Drainage Dist.

• Decision Date: 31 March 1908
• Citation: 135 Wis. 228,115 N.W. 825
• Court: Wisconsin Supreme Court
• Parties: CHICAGO, M. & ST. P. RY. CO. v. LEMONWEIR RIVER DRAINAGE DIST.

135 Wis. 228

115 N.W. 825

CHICAGO, M. & ST. P. RY. CO.

v.LEMONWEIR RIVER DRAINAGE DIST.

Supreme Court of Wisconsin.

March 31, 1908.

Appeal from Circuit Court, Monroe County; J. J. Fruit, Judge.

Action by the Chicago, Milwaukee & St. Paul Railway Company against the Lemonweir river drainage district. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Appeal from an order of the circuit court for Monroe county sustaining a demurrer to the complaint. The complaint averred the corporate existence of the plaintiff and its ownership of a railway, the corporate existence of the defendant as a drainage district, the institution of proceedings for the appointment of commissioners to examine and report upon the feasibility of draining certain lands through which the railroad of the plaintiff passed, and the making of a report by the commissioners on December 12, 1902, including a list of all lands which would be damaged by the construction of the proposed drains and ditches, awarding $8 to the plaintiff for damages to part of its right of way passing through several described subdivisions of land, the modification of said report at the instance of the plaintiff so as to read in part as follows: “That no assessment shall be made for benefits on the right of way of the Chicago, Milwaukee & St. Paul Railway Company where said right of way passes through said district. That, where said proposed ditches cross the said right of way, the said ditches shall be protected to prevent washing of said right of way, and that any change to be made now or hereafter in the roadbed, bridges, or culverts of said railway company by reason of said ditches shall be made at the expense of the said drainage district.” The report thus amended was filed by the commissioners February 17, 1903. Thereafter on March 12, 1903, the circuit court confirmed the report as so modified and amended, and thereupon said defendant became organized as a drainage district under and by the name of the “Lemonweir River Drainage District.” Thereafter said defendant proceeded to construct a system of drainage and ditches, three of which crossed the right of way and roadbed of the plaintiff, and gathered into straight, deep, and comparatively narrow channels the waters that always theretofore in times of freshet or flood had spread themselves over a large surface, and sent these waters in swift destructive torrents into the ditches, and so undermined the roadbed and tracks and abutments and supports of the bridges of the plaintiff making it necessary to lengthen, construct, and reconstruct the several bridges at an expense to the plaintiff of $1,789.98, which sum was demanded of the defendant and payment refused. The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action.

Among other references upon the part of the appellant were the following: McGinnis v. Knickerbocker Ice Co., 112 Wis. 385, 88 N. W. 300, 69 L. R. A. 833; 7 Ency. Pl. & Pr. 471, 602, 694; McCord v. Sylvester, 32 Wis. 451;Rusch v. Mil. L., S. & W. Ry. Co., 54 Wis. 136, 11 N. W. 253; 6 A. & E. Encyc. Law (1st Ed.) 604; 15 Cyc. 982; Younkin v. Mil. L., H. & T. Co., 112 Wis. 15, 87 N. W. 861;Davis v. Ry. Co., 12 Wis. 16;Pettibone v. La Crosse & Mil. R. Co., 14 Wis. 443; chapter 419, p. 704, § 19, Laws 1905; Akerly v. Vilas, 25 Wis. 704;Sentinel Co. v. Thomson, 38 Wis. 489;Roe v. Lincoln Co., 56 Wis. 66, 13 N. W. 887; 23 Cyc. 1126, 1226.

Among other references upon the part of the respondent were the following: Section 1379-18, St. 1898; Lake Erie, etc., Co. v. Smith (C. C.) 61 Fed. 885;Donnelly v. Decker, 58 Wis. 461, 17 N. W. 389, 46 Am. Rep. 637; sections 1379-11-1388, St. 1898; Valley L. Co. v. Hogan, 85 Wis. 366, 55 N. W. 415.Graham & Graham (Charles E. Vroman, of counsel), for appellant.

Naylor & McCaul, for respondent.

TIMLIN, J. (after stating the facts as above).

The drainage district was organized under sections 1379-11-1379-31, St. 1898, prior to the amendment of this law by chapter 419, p. 687, Laws 1905. A drainage district organized under that law is declared to be a body corporate with the right to sue and be sued and to have perpetual succession, the commissioners first appointed by the circuit court and their successors in office to constitute the corporate authorities of such drainage district, and exercise the functions conferred upon them by law, and do all things and perform all acts necessary to the construction and preservation of the proposed work. It is further expressly declared that all proceedings required by these sections prior to the entry of the order of confirmation shall be deemed and are declared to be necessary to the formation of said body corporate. Section 1379-18, St. 1898. This drainage district comes into existence substantially as follows: A petition of a majority of the adult owners of land within the proposed district is made to the circuit court asking for the appointment of commissioners for the execution of such proposed work. Notice of hearing of this petition is required, and, upon such initial hearing, the landowners opposed to the organization of the district have their day in court, but, if the court shall find that the petition has been signed as required by statute, and that the proposed drain is necessary or will be useful for the drainage of the lands in question, and that the public health or welfare will be promoted by the construction thereof, it shall appoint three competent persons as commissioners to lay out and construct the work. These commissioners qualify as prescribed, proceed to examine the lands described in the petition, and determine and report to the court among other things, the probable cost of the proposed work including all incidental expenses and the costs of the proceeding, together with the probable cost of keeping the work in repair after it is completed. They also determine and report what lands will be injured thereby, and the aggregate amount of such injuries, and award to each tract, lot, easement, or interest by whomsoever held the amount of damages so determined by them. They also determine and report what lands will be benefited by the construction of the proposed work, whether the benefits will equal or exceed the aggregate cost of constructing such work, including all incidental expenses, costs of proceeding, and damages. They are required to apportion and assess the estimated cost of the improvement on the lands so benefited by setting down opposite the correct description of each tract, lot, easement, interest, or servitude the portion of such cost assessed as benefits thereon. If the costs, expenses, and damages are more than equal to the benefits that will be bestowed upon the lands to be benefited, the proceedings shall be dismissed at the cost of the petitioners. Upon this report the court may change any plan of the drain or district proposed by the commissioners. Upon the hearing upon this report, any owner of lands or person affected by the work proposed may appear and remonstrate against the whole or any part of the proposed work or object to the amount of his assessment, or that other lands should be assessed which are not assessed, or claim that the boundaries of the district should be altered so as to include or exclude certain lands, and may make other objections. All these issues shall be tried by the court. If the finding be in favor of the validity of the proceedings, the court shall confirm the same, and the order of confirmation shall be final and conclusive. The proposed work shall be established and authorized, and the proposed assessments approved, subject to the right of appeal to the Supreme Court. The assessment so made separately to each tract is a lien on that tract. If the assessments are not paid, the commissioners certify the same to the town clerk of the town in which the delinquent lands are situated, and such clerk enters the same in the next tax list for such town, and they are collected in the same manner as state, county, and town taxes are collected, except that the personal property of the individual is not liable to seizure or sale therefor. If, in the first assessment, the commissioners shall have reported to the court a smaller sum than is needed to complete the work of construction or...