Commissioners of Levee v. Wabash Ry. Co.

• Decision Date: 05 February 1926
• Docket Number: No. 17010.,17010.
• Citation: 319 Ill. 379,150 N.E. 259
• Court: Illinois Supreme Court
• Parties: COMMISSIONERS OF McGEE CREEK LEVEE AND DRAINAGE DIST. v. WABASH RY. CO. et al.

319 Ill. 379

150 N.E. 259

COMMISSIONERS OF McGEE CREEK LEVEE AND DRAINAGE DIST.

v.WABASH RY. CO. et al.

No. 17010.

Supreme Court of Illinois.

Dec. 16, 1925.

Rehearing Denied Feb. 5, 1926.

Proceed by the Commissioners of McGee Creek Levee and Drainage District for assessment of lands of the Wabash Railway Company and others for drainage purposes. From an order confirming the assessment, the Wabash Railroad Company and others appeal.

Reversed and remanded.

Thompson, J., dissenting.Appeal from Pike County Court; Mark Bradburn, Judge.

Wilson & Schmiedeskamp, of Quincy (U. S. Brown and L. H. Strasser, both of St. Louis, Mo., of counsel), for appellant Wabash Ry. Co.

L. O. Vaught, of Jacksonville, for appellants Harry W. Dorwart and Henry C. Goebel.

Hubbard & Lewis, of Quincy, for other appellants.

Williams & Williams, of Pittsfield, for appellee.

HEARD, J.

The McGee creek levee and drainage district was organized as a drainage district in 1905. It embraces about 10,800 acres of land, one-third of which is in Brown county, the remaining two-thirds in Pike county. When the district was organized, a levee was constructed, beginning about a quarter of a mile northeast of the northwest corner of section 23, in Brown county, and extending in an easterly direction about a mile to the west bank of the Illinois river, and was constructed for the purpose of preventing the waters of Camp creek, which is immediately north of the levee, from overflowing the lands of the district. The levee then continues down the west bank of the Illinois river to McGee creek, where it turns and continues in a westerly and northwesterly direction along the north and east banks of the creek to a point about a quarter of a mile west of the center of section 9. The river levee is about 7 miles in length, and the McGee creek levee about 4 miles. At the time the district was organized a pumping station was built at the southeast corner of the district, and a main channel or ditch was built in a northerly direction about 7 miles. Lateral ditches were also built. In 1914 funds were raised to build a pumping plant immediately north of the Wabash railroad right of way, on the west side of the river, and to construct a ditch, called the auxiliary main ditch, leading from the new pumping plant. The present proceedings were instituted by the commissioners of the district in the county court of Pike county, and resulted in an order of the county court confirming an assessment of $226,751.82 against the lands of appellants and others in the district for the purpose of increasing the height of the levee, constructing certain ditches, and increasing the capacity of the upper pumping plant. From this order three separate appeals were taken: One by the Wabash Railway Company, one by appellants Harry W. Dorwart and Henry C. Goebel, and one by the 19 other appellants.

[1][2] Appellants Dorwart and Goebel are the owners in common of 86 acres of land in the district, which was assessed $1,872.44, but was reduced by the jury to $872.44, which amount was approved by the court in the order confirming the assessments. The uncontradicted evidence shows that about 80 acres of this tract is covered by water, and is known as Barlow Lake. This lake is about a quarter of a mile wide east and west, and three-quarters of a mile in length north and south. It lies just west of the levee along the Illinois river and is separated from the levee only by a narrow fringe of land. It is 5 or 6 feet in depth, and at the average stage of the Illinois river its surface is below the surface of the river. The evidence shows that it was bought three years ago for hunting and fishing purposes, for which purposes it is best fitted, and with one exception it is the only lake remaining in that region valuable for hunting and fishing. Its value for that purpose is more than it would be for agricultural purposes even if successfully drained. The evidence shows that the drainage of the lake would wholly destroy its value for hunting and fishing, and that the drainage work proposed would not fit the land for agricultural purposes, and that the proposed improvement, instead of benefiting the land and increasing its market value, would decrease the same. A special assessment must be spread so that no land will be burdened with more than its proportionate cost of the improvement, and in no case may the assessment exceed the benefits to be derived from the proposed improvement. Little Beaver Drainage District v. Livingston, 270 Ill. 582, 110 N. E. 806. The evidence in the case showed that the assessments against the lands of Dorwart and Goebel were in excess of the benefits to be derived from the proposed improvement, and the order of the county court must be reversed as to these appellants.

[3][4] The amount assessed by the jury and confirmed by the order of the court against the Wabash Railway Company upon its right of way as benefits was $25,000. The Wabash right of way within the district consists of a strip between 3 1/2 and 4 miles long, and 100 feet in width, except at Perry Springs Station,3.32 miles and 3.08 miles on the south side. width is 1,000 feet. There is an elevated embankment running a little northwesterly across the district. It averages about 12 feet in height. This embankment is riprapped with stone on the north side for a distance of 3.32 miles and 3.08 miles on the south sde. The riprap starts at the base of the embankment, and extends upward an average of 10 feet. One of the engineers for the drainage district testified that he had made estimates to determine what it would cost to replace the embankment in the event that it was...