Dakota Co. v. Cheeney

• Decision Date: 16 November 1887
• Citation: 35 N.W. 211,22 Neb. 437
• Parties: DAKOTA CO. v. CHEENEY.
• Court: Nebraska Supreme Court

22 Neb. 437

35 N.W. 211

DAKOTA CO.

v.CHEENEY.

Supreme Court of Nebraska.

November 16, 1887.

Syllabus by the Court.

In a proceeding to establish a drain or ditch, under chapter 89, Comp. St., the jurisdictional facts are-- First, a petition signed by one or more owners of land to be affected by the proposed ditch; second, a bond provided by statute; third, that the proposed improvement is a necessity, and will be conducive to the health, convenience, and welfare of the public; and, fourth, the statutory notice.

The failure of the county board to find that the signers of the petition are owners of lands to be affected is not jurisdictional.

A party objecting to the construction of a proposed ditch should act with reasonable promptness in urging his objections, and should not wait until the completion of the improvement before alleging an entire want of authority to make the same.

Error from district court, Dakota county; CRAWFORD, Judge.John T. Spencer, J. B. Barnes, and M. C. Jay, for plaintiff.

D. A. Holmes and H. D. Rogers, for defendant.

MAXWELL, C. J.

This is a proceeding in error from the judgment of the district court of Dakota county reversing the order of the board of county commissioners of that county in establishing and constructing a ditch in pursuance of statutory authority. The record shows that on the seventh day of October, 1884, a petition was presented to the county commissioners of that county, as follows:

“ To the County Board of Dakota County: The undersigned, owners of land lying and being in that part of Dakota county known as the ‘Swamp,’ would respectfully represent to your honorable board that all lands situated in said swamp are at present of small value to the owners thereof, and would further represent that a drain commencing at or near the south-east corner of the N. W. 1/4 of N. W. 1/4 of section 12-28-7; thence in a south-easterly direction along the lowest ground, to a point about one hundred rods east of the quarter corner of east side of section 13-28-7; thence south-easterly along and through the lowest ground, to the head of Wm. Taylor's ditch, or some point in or along said ditch, as found necessary,--with side or lateral ditches, when necessary, would render all the lands so situated of much greater value to the owners, and would be of vast benefit to the people of said county, and for public good. And would respectfully ask that your honorable board take such steps as will be necessary, under the laws of Nebraska, to open out a drain, commencing at or near a point suggested above, and thence along the route indicated, as near as may be practicable, to or near the head of Wm. Taylor's ditch, or some point in or along said ditch, with side or lateral ditches, as shall be found necessary to carry off said surplus of water and drain off said lands. And your petitioners will ever pray.

+-----------------------------------+
                ¦JOHN HARTNETT. ¦JOHN COLLINS.      ¦
                +---------------+-------------------¦
                ¦J. F. DUGGAN.  ¦FRANK HEENEY.      ¦
                +---------------+-------------------¦
                ¦JOHN DUGGAN.   ¦MIKE MALONEY.      ¦
                +---------------+-------------------¦
                ¦JOHN HEFFERMAN.¦DANIEL HARTNETT.   ¦
                +---------------+-------------------¦
                ¦MICHAEL CAIN.  ¦DANIEL DUGGAN.     ¦
                +---------------+-------------------¦
                ¦P. REELEY.     ¦JOHN HOWARD.       ¦
                +---------------+-------------------¦
                ¦A. LAHEY.      ¦P. W. BRIDENBAUGH. ¦
                +---------------+-------------------¦
                ¦JAS. HOGAN.    ¦JOHN ROONEY.       ¦
                +---------------+-------------------¦
                ¦P. KEEFE.      ¦JAS. DUGGAN.       ¦
                +---------------+-------------------¦
                ¦JAS. LAHEY.    ¦KELLEY W. FRAZIER.”¦
                +-----------------------------------+
                

The commissioners thereupon entered the following on the record: “In compliance with the prayer of the petition of John Hartnett and others for the location of a ditch from the south-east corner of the N. W. 1/4 of the N. W. 1/4 of section 12-28-7; thence in a south-easterly direction along the lowest ground, to a point about one hundred rods east of the quarter corner of the east side of section 13-28-7; thence south-easterly along the lowest ground, to the bed of William Taylor's ditch, or some point in said ditch,--with side or lateral ditches where necessary, the undersigned, on the twenty-fourth day of September, 1884, proceeded to view the line of said proposed improvement, and, upon actual view of the premises along and in the vicinity thereof, we find that said improvement is necessary, and will be conducive to the public health and welfare, and also find that the line described in said petition is the best route for said ditch, except that we find that the starting point of said ditch should be the half section line, running east and west, of section 12-28-7. We therefore hereby order the clerk of said county to enter this finding upon the commissioners' journal. We therefore direct the county surveyor to go upon said line described in said petition, and survey and level the same, and set stakes at every one hundred feet, numbering down stream, and note the intersection of section lines, road crossings, boundary lines, precinct and county lines; and make a report, profile, and plat of the same, and estimate the number of cubic yards for each working section of said drain, and to make and return a schedule of all lots, lands, public or corporate roads or railroads, that will be benefited by the proposed improvement, and proportion the line, in feet and cubic yards, to each lot, tract of land, road, or railroad, according to the benefit that will result to each from the improvement, and make an estimate of the costs of location and construction to each, and a specification of the manner in which the improvement shall be made and completed.”

At an adjourned meeting of the county commissioners, held at Dakota city. Nebraska, March 19, 1885, the following proceedings were had: “And now, at this time, to-wit, March 19, 1885, it being an adjourned meeting of the board of county commissioners of Dakota county, Nebraska. In the matter of draining the swamp in said county, which has been before them heretofore, it is considered and ordered by said commissioners, upon actual view, that the drain be made fourteen feet on the top of said ditch, and ten feet at the base of the same, and estimates be made on that basis.”

And at a meeting held March 31, 1885, the following proceedings: “Now, at this time, to-wit, March 31, 1885, it being an adjourned meeting of the board of county commissioners of Dakota county, Nebraska: Whereas, it appears that at the last meeting of said board, to-wit, the nineteenth day of March, 1885, the said board having under consideration at that time the dimensions of the ditch petitioned for in said county, it was then ordered that the same be fourteen feet wide on the top, and eight feet on base; and whereas, it appears that a mistake was made in the entry of said order; it is now ordered that said entry be changed to read as follows: Width of ditch on top, fourteen feet, and width of ditch at base, ten feet, as entered in the order of March 19, 1885.”

At a meeting of said board held April 7, 1885, the following proceedings: “And now, at this time, to-wit, the seventh day of April, 1885, it being an adjourned...