Cush v. Kruschke (In re Cent. Drainage Dist.)

• Citation: 134 Wis. 130,113 N.W. 675
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 05 November 1907
• Parties: IN RE CENTRAL DRAINAGE DIST. CUSH ET AL. v. KRUSCHKE ET AL.

134 Wis. 130

113 N.W. 675

IN RE CENTRAL DRAINAGE DIST. CUSH ET AL.

v.KRUSCHKE ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1907.

Syllabus by the Judge.

Under chapter 54, St. 1898, relating to drainage districts, a petitioner has absolute right to withdraw before the approval of the petition as warranting the appointing of commissioners, and thereafter, till final decision upon the commissioners' report, he has a qualified right to withdraw analogous to that of a complainant in a civil action in equity to dismiss his bill.

Since the statute for the creation of drainage districts does not prescribe the practice to be followed in all details, particularly in respect to the withdrawal of petitioners, such statute should be supplemented by the established practice in that class of civil actions having characteristics most nearly like those for the formation of such districts.

The proceeding for the formation of a drainage district is analogous to a civil action in equity, and the confirmation of the commissioners' report in the one to the announcement of the court's findings in the other as regards the termination of the rights of petitioners to withdraw from such proceeding and cause its discontinuance.

The right of withdrawal of a petitioner in a drainage proceeding after the filing of the commissioners' report is subject to the judgment of the court as to its reasonableness under the circumstances, and the terms requisite to protect other parties concerned from being unduly prejudiced.

Ordinarily in case of a petitioner in a drainage district proceeding withdrawing after the filing of the commissioners' report, merely because of his having considerately changed his mind as to the advisability of the enterprise, the right to do so is equitably subject to payment of all costs and expenses incurred up to the time of the withdrawal, if such withdrawal renders necessary a dismissal of the proceedings.

Appeal from Circuit Court, Juneau County; J. J. Fruit, Judge.

In the matter of the Central Drainage District. In a petition to establish a drainage ditch, G. H. Kruschke and others sought to withdraw their signatures from the petition, and from an order granting the same W. H. H. Cash and others appeal. Affirmed in part, and reversed in part.

A petition with 109 signatures for a drainage district having been duly filed with the clerk of the circuit court for Juneau county, Wisconsin, such proceedings were duly had that the facts herein alleged were found to exist warranting the appointment of commissioners as provided by law. An order was entered accordingly. The commissioners in due time filed their report showing the existence of facts requisite to the creation of the district, and that the aggregate costs of the enterprise would be about $90,000.00, or some over $3.00, per acre on all land situated therein.

During the proceedings for a confirmation of the report a large majority of the petitioners duly remonstrated against it, and asked leave to withdraw their support and have the petition dismissed. No objection was made thereto, except by the commissioners, though so far as appears by the record the petitioners who did not join in such requests were willing to have the report confirmed. One ground of the requests was that the probable cost of the work would exceed the probable benefits and was so great that in the judgment of the remonstrants the petition should be dismissed.

The court, as a result of the hearing on the requests aforesaid, held that the proceedings up to the time of the making thereof were preliminary to the formation of a drainage district, and that at any time before the confirmation of the report petitioners had a right to withdraw under the circumstances of the case, subject to a proper adjustment of the costs and expenses incurred, protecting other parties concerned from being prejudiced; that petitioners could not withdraw and leave their co-petitioners “without standing by and taking care of every expense that has been incurred up to this time any more than one or more co-plaintiffs could withdraw in an ordinary lawsuit without paying the costs incurred up to that time.” A decision to that effect coupled with one that all the petitioners were equally liable to the commissioners for the costs and expenses of the proceedings was orally announced from the bench, and an order was directed to be drawn in accordance therewith and presented for signature. In response thereto an order was prepared on behalf of the remonstrating petitioners and was signed. It was to this effect: The total acreage within the boundaries of the proposed district, as shown by the petition, is 30,440, and as recommended by the commissioners is 28,930, owned by 212 persons. Ninety-six adult landowners signed the petition owning 19,353 acres of land. One hundred and twenty owners duly remonstrated against the creation of the district. They represented 17,320 acres of land in the proposed district. Of the 96 who signed the petition 65, owning 11,000 acres of land, are opposed to the creation of the district and to the confirmation of the commissioners' report. After the withdrawal of the 65 petitioners the petition contains the signatures of only 31 adult owners of land within the boundaries of the proposed district, who are the owners of 8,353 acres of land and not enough to justify creating it. Owing to the facts stated the court is without jurisdiction to confirm the commissioners' report. The proceedings are accordingly dismissed and discontinued. Judgment should be rendered in favor of the commissioners against the petitioners for expenses and liabilities incurred according to law in the proceedings. A judgment was accordingly entered.

The order dismissing the proceedings was entered October 17th, 1906. October 22nd, thereafter, there was served upon the attorneys for the commissioners a notice of the entry of such order, specifying the matters of law determined thereby in the language thereof. The notice did not contain a copy of the order, nor was there any served therewith. Such attorneys in writing admitted service of the notice. Within thirty days thereafter, there was an ineffectual attempt made to appeal from the order. February 4th, thereafter, due service was made of a notice of the entry of the order together with a copy thereof and within the succeeding thirty days this appeal was taken.

Veeder & Veeder (Olin & Butler, of counsel), for appellants.

Graham & Graham, Daniel H. Grady, John A. Gaynor, Bowler & Bowler, and Naylor & McCaul, for respondents.

MARSHALL, J. (after stating the facts as above).

The motion to dismiss the appeal must be denied. Section 3042, St. 1898, provides that “The time within which an appeal may be taken directly from an order is further limited to thirty days from the date of the service by either party upon the other of a copy of such order, with a written notice of the entry of the same.” Service of a copy of the order was just as essential as service of a notice of the entry thereof to start the period of limitations running, and as no copy was served more than thirty days prior to the appeal it was taken seasonably. The decisions of this court are to that effect. Corwith v. State Bank of Illinois, 18 Wis. 560, 86 Am. Dec. 793;Orton v. Noonan, 32 Wis. 220;Ellis v. Barron County, 120 Wis. 390, 98 N. W. 232.

The proposition submitted for decision is this: Are petitioners for the organization of a drainage district under chapter 54, St. 1898, entitled for good cause, in the judgment of the circuit court having jurisdiction of the matter, to withdraw their support, thereby leaving the court, in case the remaining petitioners do not represent the requisite amount of land located in the proposed district, without warrant to proceed?

There is no decision of this court on the precise point under consideration. The nearest approach thereto is La Londe v. Board of Supervisors of Barron County, 80 Wis. 380, 49 N. W. 960, and State ex rel. Hawley v. Board of Supervisors of Polk County, 88 Wis. 355, 60 N. W. 266, holding that petitioners for submission to the electors of a county of a proposition to change the location of the county seat, may withdraw their request and thereby prevent their names from being counted in favor of the submission, at any time before final action by the board in respect to the sufficiency of the petition.

There are no very satisfactory decisions elsewhere on the precise point involved when statutory differences and the decision of this court as to the nature of the order confirming the commissioners' report are considered. The general trend of authority is that petitioners may withdraw at any time before final action upon the petition. The difficulty is in determining whether under our statutes the order appointing the commissioners and making the preliminary findings in respect to the petition authorizing such appointment is such final action, or whether it is the confirmation of the commissioners' report and creation of the district and whether, though the right of withdrawal, regardless of reasons therefor, terminates upon the appointment of the commissioners, a qualified right to withdraw exists up to the time of the creation of the drainage district.

It has been held that the first order upon the petition does not finally settle anything; that it is not final in any sense and so is not appealable. In re Horicon Drainage District, 129 Wis. 42, 108 N. W. 198. It was there decided that all matters in relation to the creation of a drainage district are proper subjects for consideration upon the application for a confirmation of the report of the commissioners. Section 1379-18, St. 1898, provides that “Any owner of lands or any person or corporation affected by the work proposed may appear on the day set for hearing said report and remonstrate against the whole or any part of the proposed work” in a manner particularly described, which manner it...