Cummins v. Muskingum Watershed Conservancy Dist.

• Citation: 57 N.E.2d 798,74 Ohio App. 122
• Parties: CUMMINS et al. v. MUSKINGUM WATERSHED CONSERVANCY DIST.
• Decision Date: 16 December 1943
• Court: United States Court of Appeals (Ohio)

74 Ohio App. 122
57 N.E.2d 798

CUMMINS et al.
v.
MUSKINGUM WATERSHED CONSERVANCY DIST.

Court of Appeals of Ohio, Fifth District, Tuscarawas County.

Dec. 16, 1943.

[57 N.E.2d 798]

Syllabus by the Court.

The provisions of Section 6828-1 et seq., General Code, the ‘Conservancy Act of Ohio,’ are final, conclusive and exclusive, and a landowner affected by an improvement under this act, who has been accorded all the rights and benefits provided by it, can not bring an action for damages against a conservancy district, on the ground that his damages had been enhanced after the completion of the improvement.

Action by Cummins and others against Muskingum Watershed Conservancy District to recover enhanced damages by reason of the maintenance of the district. The demurrer to plaintiff's petition was sustained, and plaintiffs appeal on questions of law.-[Editorial Statement.]

Affirmed.

Rowland & Rowland, of Cadiz, and Thornburg & Lewis, of St. Clairsville, for appellants.

Fisher, Limbach, Smith & Renner, of New Philadelphia, for appellee.

MONTGOMERY, Presiding Judge.

The appeal to this court is on a question of law. The lower court sustained a general demurrer to plaintiffs' second amended petition and, they not desiring to plead further, the court rendered final judgment. The particular question in this case has never before been presented to this court, but the members of the court of this judicial district, having had so many phases of this Muskingum Watershed Conservancy District matter presented to them, and being familiar with the provisions of the act establishing the district, have encountered less difficulty than ordinarily would have been anticipated. This is the fifteenth opinion which the

[57 N.E.2d 799]

writer has written in attempting to construe the provisions of that act, and in determining the rights of interested parties thereunder, exclusive of reviews of awards made under the provisions of Section 6828-34, General Code.

The second amended petition avers in substance that the plaintiff's were the owners and operators of a farm of about 141 acres of land in Freeport township, Harrison county, Ohio, within the boundaries of the conservancy district, through which farm runs what is known as Big Stillwater creek. The second amended petition contains a description of the topography of the land, the purposes for which it was used and the nature of its underdraining. It further avers that prior to May, 1935, Big Stillwater creek flowed through its channel without obstruction of any kind in its natural flow and was easily fordable except in times of flood. It further avers that title was obtained by the conservancy district, on or about April 1, 1935, to lands lying above plaintiffs' farm and the construction on the lands so acquired, known as the Piedmont dam, impounding the waters of such creek and valley.

It is further averred that on February 26, 1936, there was duly filed the conservancy appraisal roll, to which the plaintiffs filed exceptions, and thereafter filed a written notice demanding trial by jury, but that no condemnation proceedings have as yet been had.

As a first cause of action it is averred that during floods of such creek on June 4, July 4, August 4 and September 4, 1935, sterile material, rock, clay, silt, etc., were, as the result of the construction of such dam, thrown upon the land of the plaintiffs which prevented the obtaining of ordinary crops from the farm during the years 1935, 1936, 1937 and 1938.

As a...