Chicago, R.I. & P. Ry. Co. v. Risty

• Decision Date: 17 February 1922
• Docket Number: 98-103.
• Citation: 282 F. 364
• Parties: CHICAGO, R.I. & P. RY. CO. v. RISTY et al. (MINNEHAHA NAT. BANK OF SIOUX FALLS, S.D., e al., Interveners), and five other cases.
• Court: U.S. District Court — District of South Dakota

282 F. 364

CHICAGO, R.I. & P. RY. CO. v. RISTY et al. (MINNEHAHA NAT. BANK OF SIOUX FALLS, S.D., e al., Interveners), and five other cases.

Nos. 98-103.

United States District Court, D. South Dakota.

February 17, 1922

A. B Fairbank, of Sioux Falls, S.D., for plaintiff Chicago, R.I. &amp P. Ry. co.

C. O Bailey, of Sioux Falls, S.D., and Ed. L. Grantham, of Aberdeen, S.D., for plaintiff Chicago, M. & St. P. Ry. Co.

C. O Bailey, of Sioux Falls, S.D., for plaintiff Chicago, St. P., M. & O. Ry.

H. E. Judge, of Sioux Falls, S.D., for plaintiffs Northern States Power Co. and Great Northern Ry. Co.

R. W. Parliman, Sr., of Sioux Falls, S.D., for plaintiff city of Sioux Falls.

E. O. Jones, of Sioux Falls, S.D., for defendants.

N. B. Bartlett, of Sioux Falls, S.D., for intervening defendants.

ELLIOTT District Judge.

I have finally disposed of the questions presented in the various drainage ditch cases, consolidated for the purpose of trial, and which were tried and submitted upon single record.

The question of the constitutionality of the South Dakota drainage statute (Rev. Code, S.D. 1919, Sec. 8458 et seq.) is pleaded by each plaintiff, and upon this issue the interests of the plaintiffs in all these suits are identical. It is urged by the plaintiffs in the various suits that the entire South Dakota drainage statute is unconstitutional, for the reason that it is in conflict with the Fourteenth Amendment of the Constitution of the United States. Plaintiffs call the court's attention to the provision of the Fourteenth Amendment that prevents the taking of property 'without due process of law.'

If the South Dakota statute does not give the person whose land is to be assessed for the drainage of agricultural lands his 'day in court,' then there is no 'due process of law.' I find, upon investigation of the various drainage ditch statutes, that almost universally the provision is made for the organization at the inception of the proceeding of a drainage district, with boundaries defined, organized after notice to all property owners within the district, and endowed by statute with certain powers consistent with the purpose for which the district is organized. I also note that ordinarily, where no provision is made for the formation of a drainage district, as is the case in this state, provisions are usually made for the notification of the property owners whose interests are supposed to be included in the drainage district, and for the giving to them of an opportunity to be heard in respect to the question of the practicability or feasibility of the drainage proposition, and whether or not the benefits will exceed the cost, and whether or not the particular lands of the owner shall be included within the drainage district and assessed its pro rata share of the benefits.

It is urged by the plaintiffs, and must be conceded, that in this regard the South Dakota statute differs from the drainage statutes of most other states. Section 8459, Revised Code of South Dakota, provides that a petition for proposed drainage may be filed with the board of county commissioners. This is the first step in the proceeding. This petition is only required to set forth the necessity for the drainage, a description of the route, its initial and terminal points, and its general course, or of its exact course in whole or in part, and a general statement of the territory likely to be affected thereby.

Under this statute petitioners are not required to describe the specific tracts of land to be included within the drainage area, or which will be affected thereby or assessed therefor. Neither is it necessary to give the names of the owners of the property. The statute requires only a 'general statement' as to the extent of the territory affected.

Section 8461 of said Revised Code provides that the board shall fix a time and place for the hearing of the petition and shall give notice by publication at least once each week for two consecutive weeks in a newspaper in the county and by posting notices near the route of the proposed drainage. It also provides that such notice shall describe the route of the proposed drainage and the tract of country likely to be affected thereby, in general terms, the separate tracts of land through which the proposed drainage will pass, and give the names of the owners thereof as appears from the records in the office of the register of deeds on the date of the filing of the petition. It is further provided that such notice shall summon all persons affected by the proposed drainage to appear at such hearing and show cause why the proposed drainage should not be established and constructed.

Plaintiffs note that this statute, except as to property owners through whose property the proposed drainage will pass, provides only this general notice, and especially complain that it gives no property owner any notice that his particular tract of land is included among the lands affected by the proposed drainage, and insist that the notice is broad enough to take in each and every tract of land included within the boundaries of the county in which the drainage project is situated. It is true that, other than this general notice, there is no notice whatever given to the property owner that his particular land is affected by the drainage proposition, or that he has any interest in it, or will be mulcted in assessment for benefits by reason thereof. He receives no summons or other notice, either by personal service or by mail. He has, however, the general notice given in the published summons by the commissioners to--

'all persons affected by the proposed drainage to appear at such hearing and show cause why the proposed drainage should not be established and constructed.'

By section 8461 of the said Revised Code the county commissioners pass upon the petition at the time named in the summons and notice, and, if they find it feasible to establish the drainage, no provision is made for any other notice to any property owner, unless it should be found necessary to change the initial or terminal points, so that the drainage will pass through other lands than those described in the original notice, or to increase the width of the lands to be taken for the proposed drainage, in which case the board must give the owners of such lands notice. There is no provision, however, for any notice to any property owner after the drainage ditch is established.

The board may then proceed without further notice to its construction. It may incur construction expense before taking any proceedings towards making an assessment for the payment of the costs, or it may, before doing the work, estimate the costs and make an apportionment of benefits, upon which the assessment may subsequently be spread by the county auditor.

Section 8463 of said Revised Code authorizes the said county commissioners, after establishing the drainage, to fix the proportion of benefits of the proposed drainage among the lands affected, and also appoint a time and place for equalizing the same. It is then provided that notice of such equalization of proportion of benefits shall be given by publication for two weeks. It is provided that this notice must give a description of each tract of land affected by the proposed drainage and the names of the owners as appears from the records of the office of the register of deeds. It is further provided that the lands to be charged with benefits include all pieces of property that, in the judgment of the board of county commissioners, are benefited by the drainage proposition. At this hearing the board fixes the proportion of benefits for each tract of land, taking any particular tract as a unit, and also fixes the benefit which any railroad company may obtain for its property by such construction, and equalizes it together with the proportion of the benefits to tracts of land.

This statute seems to provide for this hearing for fixing the proportion of the benefits before the ditch is constructed and before it is known what will be the actual amount of money expended. This hearing may be delayed until after the ditch has been built. It also provides that in event there is further expense incurred, or if for any reason parties assessed do not pay the tax, a new proportion of benefits shall be fixed and new assessments made. At this hearing the owners of the lands alleged to be benefited have notice, have the right to appear and contest the amount of the benefits upon their lands, and may even urge that no benefits are derived. From this assessment there is a provision granting an appeal to the circuit court of the county in which the lands are situated, in which the proportional benefit may be an issue, and the owner of the land, upon such appeal, may contest the fact that there are any benefits to the land in question. The law further provides for an appeal from the determination of such issue in the circuit court to the Supreme Court of the state. After such proportional benefits are determined, the county auditor spreads the tax, and it then becomes a lien upon the property benefited.

This brief statement of the provisions of the statute, not at all complete, but in a general way, outlines the general powers of the board and the method of the establishment of the ditch and the various steps up to the spreading of the tax against the lands benefited. These proceedings are peculiarly limited to the drainage of agricultural lands, because the Constitution of the state of South Dakota (Const. art. 21, Sec. 6) provides that:

'The drainage of agricultural lands is hereby declared to be a public purpose and the Legislature may provide therefor, and may provide for the organization of drainage districts for the drainage of

...