Delfelder Drainage Dist. v. Givens
| Decision Date | 21 November 1932 |
| Docket Number | 1690 |
| Citation | 45 Wyo. 123,16 P.2d 57 |
| Parties | DELFELDER DRAINAGE DIST. v. GIVENS |
| Court | Wyoming Supreme Court |
ERROR to District Court, Fremont County; E. H. FOURT, Judge.
Suit by the Delfelder Drainage District against Donald Givens, and others. Judgment was entered dismissing the petition, and plaintiff brings error.
Reversed.
The cause was submitted for the plaintiff in error on the brief of O. N. Gibson, of Riverton, Wyoming.
The procedure for bringing in outside lands receiving benefit of drains is prescribed by Secs. 1080 to 1083 C. S. 1920. The commissioner's report is open to remonstrances upon notice in writing. A demurrer to a pleading based on a statutory remedy must specify grounds within the statute. All other grounds are to be excluded. 1 Bancroft 300-3, 49 C. J 371; Co. of Rock Island v. Union Printing Co. (Ill.) 71 Ill.App. 636; Gebhart v. Adams, 23 Ill. 347; Grubbs, et al. v. King, (Ind.) 20 N.E 712; Kyle, et al. v. Craig, (Calif.) 57 P. 792; Silva v. Spangler, (Calif.) 43 P. 617; Patrick v. Board of Commrs. of Haskell Co., et al., 181 P. 611; Campbell v. Campbell, 23 N.E. 81; Oglebay v. Tippecanoe Loan & Trust Co., 82 N.E. 494; State v. Katzman, 69 N.E. 157. One seeking to avail himself of the benefits of a statute must bring himself within the provisions thereof. 1 Bancroft 87; Fair v. Home Gas & Electric Co., (Calif.) 110 P. 348; Rosenfield v. Jakways, (Mont.) 216 P. 778; Ruiz v. Santa Barbara Gas & Electric Co., (Calif.) 128 P. 331; First Nt. Bank of Billings v. Custer Co., (Mont.) 17 P. 551. And proceedings by which a new right is perfected under a statute must be strictly followed, the allegations of compliance with the statute being jurisdictional. A statutory cause of action should be stated in the words of the statute. Kneabel, et al. v. Escudero, et al., (N. M.) 255 P. 633; Perkins, et al. v. Loux, Mayor, et al., (Idaho) 95 P. 694. In a procedure under a special statute containing provisions as to pleadings and evidence, the strict rules of pleading under the civil code cannot be given effect where in conflict with the statute. City of Albany v. Pub. Service Com. of Ind., (Ind.) 140 N.E. 433. The statute provides that all remonstrances to petitions for the inclusion of lands within the drainage district shall set forth facts on which they are based. Sec. 1082 C. S. 1920. This excludes any idea of the existence of any right to demur to the petition. This is always true where valid objections are defined by the statute itself. Bliss on Code Pleading, Sec. 404; Grubbs, et al. v. King, supra; Gordon v. Swift, 39 Ind. 212, and also Thomas v. Goodwine, 88 Ind. 458; Silva v. Spangler, 43 P. 617, 49 C. J. 371-2; State v. Tobin, 31 Wyo. 367; In re McDonald, 33 Wyo. 19. The rule applies in affidavits in attachment. 6 C. J. 110; Bank v. Swan, 3 Wyo. 372; Patrick v. Board of Commrs., et al., 181 P. 611. A petition substantially in statutory form is not open to demurrer. The court erred in sustaining the demurrer.
The cause was submitted for defendants in error on the brief of A. C. Allen, of Riverton, Wyoming.
The petition fails to allege facts sufficient to give the court jurisdiction of the class of action involved here. Sec. 997 C. S. The statute further provides Sec. (1080 C. S.) that when land outside of a drainage district is being benefited, the commissioners may report the facts to the court and ask that they be brought in and assessed for benefits received. Plaintiff intended this to be an original action and not supplementary to any other drainage district proceeding since no former proceeding is referred to in the petition or by annexed exhibits. The provisions of Ch. 76 C. S. 1920 were clearly intended for the protection of outside land owners as well as for the protection of those within a drainage district.
The District Court of Fremont County sustained a general demurrer to a petition filed therein by the Commissioners of the Delfelder Drainage District. The petitioners, having announced that they would stand on their petition and not plead further, the court entered a judgment dismissing it. Saving proper exception to this ruling and claiming error in that respect, the record is brought here for review by proceedings in error.
The petition in question is entitled "In the Matter of the Delfelder Drainage District, Petition for Inclusion of Outside Lands," and is brought by the Commissioners of said district, who "represent to the court," in substance, as follows: That the Delfelder Drainage District is a drainage corporation organized and existing under the drainage district law of this state; that the signers of the petition are the duly appointed, qualified and acting commissioners thereof; that the district was organized by the District Court of Fremont County, April 27, 1923, the report of the commissioners therein describing the proposed drainage works and fixing the amount of the assessment of benefits and for construction, and finally establishing the district boundaries, being confirmed by said court's order, entered of record December 21, 1923; that pursuant thereto, said commissioners promptly proceeded to construct and complete the drainage works therein provided for which have ever since been and now are in actual operation; that the construction and operation of said drainage works have not only resulted in large and permanent benefits to the lands within the district, but certain lands outside its boundaries and adjacent thereto have thereby received from them, through direct or indirect, natural or artificial connection with the drains of said district, very large and substantial benefits for which they have paid, and will continue to pay, nothing, unless they are included within the boundaries of said district and subjected to assessments by it therefor. A description of these outside lands, giving their section subdivision, township, and range numbers, together with the names of the owners thereof, arranged in tabulated form, is then set forth in detail. The petitioners pray that the boundaries of said district, as previously established, may be enlarged and extended to include the described outside lands; that upon the filing of this report, the court ordered the land owners aforesaid to be notified of such filing and the contents thereof and require them to show cause at a time therein fixed, not less than 20 days thereafter, why their said lands should not be brought into said district and assessed for the benefits thereby received. The petition or report is signed by two commissioners and was filed on September 13, 1930.
Nine days later and on September 22, 1930, the court made an order to show cause as prayed, calling upon the land owners aforesaid to appear on October 23, 1930. On the 21st of the month last mentioned, they filed a demurrer asserting (1) that the court had no jurisdiction of the subject matter of the action, on the ground that there was no statutory provision for maintenance thereof, (2) that the plaintiff has no legal right or capacity to maintain said action, (3) that said action is in violation of Sec. 997, Wyo. Comp. St. 1920, and (4) that the facts stated in said petition do not entitle plaintiff to the relief demanded. Two days later, the court, after argument, disposed of the demurrer by the judgment now attacked wherein it was found "that said petition is not sufficient and that the demurrer of the defendants and remonstrators should be sustained on the ground that the facts stated in the petition do not entitle plaintiff to the relief demanded."
The disposition of the question raised by the errors assigned and presented here involves a determination of the proper procedure under certain sections of the law of this state relative to drainage districts; viz., Sections 1080 to 1086, inclusive, of Wyo. Comp. St. 1920 (now Wyo. Rev. St. 1931, §§ 122-892 to 122-898, incl.). The language of these sections was first incorporated in our statutory law in 1911 (Laws Wyo. 1911, ch. 95, §§ 85 to 91, incl.). They would seem to have been borrowed from the drainage act adopted in the State of Wisconsin in 1905, (Laws Wis. 1905, ch. 419, § 28) for their phraseology is identical with that appearing in the Wisconsin law with the exception that the latter act provided specifically for an appeal within 30 days from the final confirmation order provided for in said Section 28 (Wyo. Comp. St. 1920, § 1086, Wyo. Rev. St. 1931, § 122-898) or, otherwise, that order became conclusive.
In the Wisconsin law, the material embraced in the above enumerated sections of the Wyoming statutes is all included in one section--Sec. 28, supra. Neither that section nor the procedure under it seem to have received attention at the hands of the Wisconsin court of last resort. The law has been modified, but in its essential features remains the same in the last edition of the Wisconsin statutes to which we have access (Wis. St. 1929, § 89.52). The sections aforesaid of our law, however, were considered by this court in the case of In re Organization of Bench Canal Drainage District, 24 Wyo. 143, 156 P. 610, 615, where certain constitutional objections were urged against the drainage act and were held untenable. Many of the sections of the act will be found set out verbatim in the opinion in that case and among them are those which furnish the basis for the procedure questioned in the case at bar. Here, for convenience, it will be necessary to quote but three of these sections and the final clause from the last of them.
Sec. 1080, Wyo. Comp. St. 1920, (Wyo. Rev. St. 1931, Sec. 122-892) reads:
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...district, the commissioners report the 'facts' showing that the lands are receiving the benefits of its drains. Delfelder Drainage Dist. v. Givens, 45 Wyo. 123, 16 P.2d 57, 59. Before an annexation can be decreed, the court (after a hearing following service upon the owners of the land soug......