Comm'rs of Little Beaver Special Drainage Dist. of Kankakee v. Livingston

• Decision Date: 22 December 1915
• Docket Number: No. 10219.,10219.
• Citation: 110 N.E. 806,270 Ill. 582
• Parties: COMMISSIONERS OF LITTLE BEAVER SPECIAL DRAINAGE DIST. OF KANKAKEE AND IROQUOIS COUNTIES v. LIVINGSTON et al.
• Court: Illinois Supreme Court

270 Ill. 582

110 N.E. 806

COMMISSIONERS OF LITTLE BEAVER SPECIAL DRAINAGE DIST. OF KANKAKEE AND IROQUOIS COUNTIES

v.LIVINGSTON et al.

No. 10219.

Supreme Court of Illinois.

Dec. 22, 1915.

Error to Kankakee County Court; A. W. Deselm, Judge.

Proceeding by the Commissioners of Little Beaver Special Drainage District of Kankakee and Iroquois Counties, Ill., opposed by Isaac Livingston and others. From a finding on a verdict ordering the construction and repair of ditches, the objectors bring error. Reversed and remanded.W. G. Brooks, of St. Anne, for plaintiffs in error.

W. H. Savary, of Kankakee, for defendants in error.

CARTER, J.

This was a proceeding in the county court of Kankakee county, under section 37 of the Levee Act, for improving the drainage of Little Beaver Special Drainage District in Kankakee and Iroquois counties. The petition alleged the insufficiency of the existing drainage, and specified a plan of work for improvement by deepening and widening, making new ditches and transforming some of the open ditches into tile drains, at an estimated cost of over $94,000. On a hearing before the county court the county judge, having visited the territory in question, thereafter, on August 11, 1913, directed the commissioners to modify their plans. This was done by said commissioners by filing a supplemental petition, outlining a plan of drainage of partly tile and partly open ditches, at an estimated cost of $78,200. On this supplemental petition a hearing was had, and the jury returned a roll, assessing the property in the district for benefits at a total of $78,200 and repair tax of $2,500 annually, and also different amounts for land actually taken, but allowing no damages as to land not taken. In accordance with this verdict, the county court ordered the repair and construction of the ditches in question. From this finding of the county court this writ of error has been sued out.

The district here in question was originally organized under the Farm Drainage Law, but had been changed by a vote of the landowners, some time before this proceeding, into a levee drainage district, apparently under the provisions of section 65 of the Levee Act. Hurd's Stat. 1913, p. 944. It is argued by counsel for plaintiffs in error that this was practically a new district, and that the only way the proceedings could have been started was by a petition of a certain proportion of the landowners, as provided for the organization of new districts under said Levee Act. With this we do not agree. While there are a number of new tile drains in the proposed plan and changes in certain other portions of the ditches, we do not think the record shows that it was an entirely new system, or the practical creation of a new district. Said section 65, under which the farm drainage district was made a district under the Levee Act, provides that after it has been so organized thereunder ‘all further proceedings and work of such district shall, thereafter, be in the manner provided by this act,’ etc. Manifestly, it was intended that all future work should be in accordance with the provisions of the Levee Act, and thereafter the provisions of section 37 as to repair work would control, the same as if this district had been originally organized under the Levee Act and the first work done thereunder. The argument by counsel that this would be unjust, and that the landowners ought to have something to say about the work, is without merit, as when they voted to reorganize under this law they must have clearly understood that the provisions of said Levee Act thereafter applied.

Counsel for plaintiffs in error further contends that the property of his clients is not benefited the amount it is assessed. There are 78 persons named in the assessment roll, the entire acreage of the district being 13,154. Some 30 witnesses testified definitely and directly as to over one-third of the acreage of this district, to the effect that the proposed work was unnecessary and would be of no benefit. About the same number of witnesses testified there would be no benefit to the land they owned or on which they were located as tenants, and a number testified concerning lands which they did not occupy, to the same effect. Some of them testified that the same result could be had by cleaning out some of the existing ditches as would be attained by the elaborate plan proposed by the commissioners. The general testimony of plaintiffs in error was substantially to the effect that all the entire district needed was simply a cleaning out of the present ditches and drains. For the district, the civil engineer who made the plans, profiles, and specifications for the proposed work testifiedthat he was acquainted with the fair cash market value of the land in the district, and gave his estimate of the value of 11 different pieces of property. He testified that in his judgment every piece of property in the district would be benefited by the proposed work the amount of the assessment. Three other expert witnesses for the commissioners testified substantially to the same effect. The above was practically all the testimony on either side, although a few witnesses testified for the district on certain minor points. It is plain that the evidence was strongly conflicting, and, while we are not prepared to say that we would reverse the judgment on account of the evidence failing to show that the property was not benefited the amount it was assessed, it is clear from the state of the record that the rulings of the court on the admission of evidence and as to instructions should be accurate.

The four expert witnesses for the district, over the objection of counsel for the plaintiffs in error, testified before the jury that the district, as a whole, would be benefited as much as or more than the entire assessment. We think this was error. The report of the probable aggregate amount of benefits required under the Levee Act is a preliminary report, and is merely advisory to the court, and not conclusive as to the amount which may be raised by assessment. Sny Island Drainage District v. Shaw, 252 Ill. 142, 96 N. E. 984.

A special assessment must be spread so that no land will be burdened with more than its proportion of the cost of the improvement. Under our constitutional provisions relating to drainage, a special assessment can only be made on property benefited by the proposed improvement, and in no case may the assessment exceed the benefits to be derived from the proposed improvement. People v. Welch, 252 Ill. 167, 96 N. E. 991.

[5] It would in no way aid the jury in finding the benefits on each individual piece of property to have witnesses testify that the property within the district would be benefited the total cost of the proposed improvement. Every owner of property has a right to a hearing on the question whether the assessment exceeds the benefits, before the tribunal authorized by law to determine it. People v. Whitesell, 262 Ill. 387, 104 N. E. 688. In this proceeding the tribunal was a jury. This objectionable evidence was not only permitted, but...