City of Joliet v. Spring Creek Drainage Dist.

• Decision Date: 23 October 1906
• Citation: City of Joliet v. Spring Creek Drainage Dist., 222 Ill. 441, 78 N.E. 836 (Ill. 1906)
• Parties: CITY OF JOLIET v. SPRING CREEK DRAINAGE DIST.
• Court: Illinois Supreme Court

222 Ill. 441

78 N.E. 836

CITY OF JOLIET

v.SPRING CREEK DRAINAGE DIST.

Supreme Court of Illinois.

Oct. 23, 1906.

Appeal from Circuit Court, Will County; Dwight C. Haven, Judge.

Proceedings for the establishment of a drainage district. The city of Joliet filed objections to the confirmation of the report of commissioners. From a judgment of confirmation, the city appeals. Reversed and remanded.James A. McKeown, City Atty., and Robert E. Haley, for appellant.

S. J. Drew, for appellee.

This is a statutory proceeding, begun by the filing of a petition of January 17, 1903, in the county court of Will county for the purpose of forming a drainage district, to be known as the ‘Spring Creek Drainage District,’ under ‘An act to provide for the construction, reparation and protection of drains, ditches and levees across the lands of others for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts,’ approved and in force May 29, 1879, and the amendments thereto; said district to be formed out of lands lying wholly in Will county, and partly in the city of Joliet. The prayer of the petition is as follows: ‘Wherefore your petitioners pray that a drainage district to be known as the ‘Spring Creek Drainage District’ may be established according to law under the provisions of the act of the General Assembly of the state of Illinois, approved and in force May 29, 1879, and the several amendments and additions made thereto, and now in force.' On March 20, 1903, the court entered an order, finding that the petition was signed by a majority of owners of property in the district of lawful age, and representing at least one-third in area of the lands proposed to be affected, that said lands are subject to overflow and require drainage for agricultural and sanitary purposes, that the formation of a drainage district is necessary, and that said system of drainage will be useful to the lands and property mentioned in the petition. And it was ordered and decreed by the court that a drainage district be formed from the territory described in the petition, setting forth the limits of the district, which begins at a point in the center of Iowa avenue in the city of Joliet, and contains 440 acres, more or less, all in the town of Joliet in Will county; that the name of the district be the ‘Spring Creek Drainage District,’ and that three persons, named Monroe, Youker, and Ahlvin, be appointed commissioners for said district, and proceed to qualify as such, and take the steps required by law to carry into effect the prayer of the petition. The commissioners made a report, dated September 17, 1903, setting forth that they had examined the lands described in the petition, and other lands therein mentioned, and that the proposed work was necessary; that they had determined on following the route of Spring creek in said district with a few changes and additions thereto, as shown on the maps, plans, etc., attached to their report; that for the main ditch, branch ditches, open, tiled, and covered, reference was had to the report of the engineer for said district, attached to the report of said commissioners; that the proposed work is to deepen, widen, and wall said main ditches and branches where the same are open and wherever the same is necessary, and to use tile and cover same for other branches; that they employed a surveyor, named Zarley, to make a survey, map, plan, profile, and specifications of the work, showing the starting point, route, and terminus of the proposed work, and the location, size, and dimensions of said ditch, ditches, or drains, etc.; that the probable cost of the work is the sum of $165,000.00; that the probable annual cost of keeping the ditch, ditches, or branches in repair, after the proposed work is completed, is the sum of $150; that none of the lands described in the petition, or set forth as benefited and not named in the petition, will be injured by the proposed work, and that $16,000 will be required to pay the damages to lands caused by the construction of the proposed work; that all of the lands described in the petition will be benefited by the construction of said work, and that the aggregate amount of benefits will exceed the cost of the construction; that they found the ditches, drains, channels, or work should be as set forth by the surveys, maps, plans, profiles, specifications, and petitions filed in the cause. And they ask that their report be approved and confirmed, and that the named drainage district be declared organized into a drainage district known as the ‘Spring Creek Drainage District,’ and that the court enter an order directing the commissioners to make an assessment against the lands within said district for the purpose of raising the amount found necessary therein to construct said system of drainage, including the incidental costs and expenses, etc. At the February term, 1904, of said court, an order was entered that the commissioners should take the required oath, and in lieu of the jury proceed to make an assessment of benefits against the lands within the boundaries of the district, and separately assess all benefits against each tract, lot, or parcel of ground within said drainage district in the proportion in which such tract or tracts of land would be benefited, and that the commissioners proceed in all respects pursuant to the statute, etc.

On March 22, 1904, the commissioners filed the original assessment roll of benefits, showing the property specially benefited, giving a description of each lot, block, tract, or parcel of land benefited, and the amount assessed as special benefits; the names and residences of the persons who paid the taxes thereon during the last preceding year, etc. The original assessment roll showed that certain lots, belonging to the city of Joliet, to wit, lots 16, 17, 18, 19, 20, and 21 in James E. Henderson's subdivision, etc., were assessed, each of the first five of said lots at $181, and the last lot, to wit, lot 21, at $118. The original assessment roll also showed that the city of Joliet was assessed the sum of $3,800, as benefits, against the streets located within the boundaries of said district. At the April term, 1904, the city of Joliet filed objections to the confirmation of the report of the commissioners, and therein stated that the city of Joliet holds, in fee, title to parts of certain public streets and alleys within the limits of said proposed drainage district, and has an interest in other streets and alleys within the same for the purpose of maintaining such streets and alleys for public travel; that said city owns a bridge, situated on Washington street, where the same crosses Spring creek, and a bridge at Jackson street, where the same crosses Spring creek, all of the said bridges having been erected by said city at great cost and expense to it; that said city also owns lots 16, 17, 18, 19, 20, and 21 above named, and also owns a bridge erected across said Spring creek upon said lot 16. And the city objected to the confirmation of the report, upon the ground that there was no valid law authorizing the creation of such a district; that a part of the territory embraced within it was within the corporate limits of the city of Joliet, and the drainage of such parts had been taken charge of, and provided for, by the city under and by virtue of the charter of the city, and that it was unlawful to impose on such territory a second municipality or power for drainage purposes; that a part of the water course, described in the petition as Spring creek, is within the corporate limits of the city, and has been improved and is being maintained by said city, at great expense, as a part of the drainage and sewer system of said city, and that, for this reason, said district has no power to assume the control of said part of said Spring creek, or to interfere with the control of the same by the city; that a part of the territory in the proposed district is in said city, and the law does not authorize a drainage district to be created which will include within its limits a part of the territory of an incorporated city; that it is proposed to assess said city for alleged benefits to its streets and alleys, and said proposed district has no power to impose on the city an assessment for benefits to its streets; that it is proposed to assess said city in a further sum for benefits which will accrue to its said lands in James E. Henderson's subdivision, and said district has no power to impose an assessment on the city for such benefits, if any there should be; that the carrying out of the plans of said district will result in the taking, damaging, and destroying of bridges, streets, alleys, school lots and lands, retaining walls, and other property of said city, and no lawful method has been followed or is being taken or is proposed by said drainage district to ascertain and determine the amount of damage to said city by reason of the taking or damaging of said property. On June 9, 1904, the court took up for decision the said objections to the said assessment roll of benefits, and, in its order entered as of the last-named date, the court ‘finds that the said assessment roll includes assessments levied in part against property which will actually be taken for the purposes of said district, which method of making the assessment of benefits the court finds is contrary to law, and the court further finds that said assessment roll should be in that respect amended or modified, and thereupon the court instructs the commissioners to so amend or modify said assessment roll as to exclude from the assessment of benefits by them made all lands which will actually be taken for the purposes of said drainage district.’ Subsequently, on June 24, 1904, the commissioners were given leave to amend their assessment roll, and, in their petition asking that the same be amended, they state that the amounts...