Donner v. Bd. of Highway Com'rs

• Decision Date: 19 April 1917
• Docket Number: No. 10995.,10995.
• Citation: 115 N.E. 831,278 Ill. 189
• Parties: DONNER et al. v. BOARD OF HIGHWAY COM'RS et al.
• Court: Illinois Supreme Court

278 Ill. 189

115 N.E. 831

DONNER et al.

v.BOARD OF HIGHWAY COM'RS et al.

No. 10995.

Supreme Court of Illinois.

April 19, 1917.

Appeal from Woodford County Court; Arthur C. Fort, Judge.

Proceeding by Peter Donner and others against the Board of Highway Commissioners and others. From judgment dismissing the proceeding, petitioners appeal. Reversed and remanded.

Thomas Kennedy and Ernest J. Henderson, both of Minonk, and Hall, Martin & Hoose, of Bloomington (Carl E. Phillips, of Decatur, of counsel), for appellants.

Bosworth & Bosworth, of El Paso, and Barnes, Magoon & Black, of Lacon, for appellees.

DUNCAN, J.

The Panther Creek drainage district, in Woodford county, was organized under the Levee Act (Hurd's Rev. St. 1915-16, c. 42, §§ 1-243) by an order of the county court of that county entered February 21, 1946. On April 10, 1916, the commissioners of said district filed in said court the commissioners' roll of assessments of benefits and damages, and gave notice, as provided by section 17a of said act, that on April 24, 1916, at the April probate term of said court, they would appear before said court, at the court house in said county, for the purpose of having a jury impaneled, as provided by section 6 of the Eminent Domain Act (Hurd's Rev. St. 1915-16, c. 47), for a hearing on all questions of benefits and damages to the lands in said district. At the hearing on said assessment roll appellees filed objections that their lands were assessed more than they would be benefited by the construction of the work and more than their proportionate shares of the cost thereof, and moved the court to dismiss said petition for want of jurisdiction, for the following reasons: (1) No copy of the original petition to organize said district was filed; (2) the original petition to organize the district, the notices published, and the findings of the court in its order of October 25, 1915, are not according to the statute; (3) the starting point of the main ditch as set forth in the petition, the report of the commissioners and notices published is not accurately given, and the description thereof is vague, uncertain and wholly insufficient; (4) the boundary lines of the district are not accurately set forth in the petition, in the report of the commissioners, in the notices, and in the facts found by the court, but are vague and uncertain; (5) the commissioners are proposing to build eight lateral drains, none of which were petitioned for; (6) all the lands in the district are not assessed; (7) the commissioners never took and subscribed the oath of office; (8) tenants of portions of the land in the district have not been made parties to the proceedings or their rights therein set forth; (9) Woodford county is a proper and necessary party, but has not been made a party to the proceedings; (10) the laterals not petitioned for are not described as open or covered drains; (11) the starting point of lateral E is vague and uncertain; (12) it does not appear that the commissioners viewed each parcel of land, and every part thereof, in making up their assessment of benefits and damages. The court sustained the motion to dismiss the petition on the second, third, fourth, fifth, seventh, ninth, tenth, eleventh, and twelfth grounds assigned by appellees, and held that the first, sixth, and eighth grounds had been waived by appellees, entered an order vacating the order establishing the district and all other orders prior thereto, and dismissed the proceedings to assess benefits and damages at appellants' costs. The order of the court recited:

‘The court takes judicial notice of the fact that no sufficient oath has been taken by said commissioners in accordance with the provisions of section 6 of the Levee Act; that said oath is jurisdictional; that the nature of the improvement proposed in said petition is radically different from that reported by the commissioners; and that it was an abuse of judicial discretion not to have modified the report of the commissioners.’

There is no evidence in this record that supports the conclusion, order, and judgment of the court in holding void and vacating all previous orders of the court and in dismissing the proceedings than before it. The final order of the county court decreeing the establishment of Panther Creek drainage district was put in evidence by appellants, and that order was drawn and entered in accordance with every requirement of section 16 of the Levee Act. The petition for the organization of the district, signed by 73 landowners, and filed in the county court September 30, 1915, conforms to every requirement of the statute, and is not subject to the objection of appellees that it did not set out clearly the nature and character of the drain and the work to the done. The allegations of the petition as to those matters read thus:

‘The proposed starting point, route, size, and terminus of the said ditch or drain are as follows: Commencing at the northwest corner of the northeast quarter of section 29, township 27 north, range 3 east of the third principal meridian, in Livingston county, Ill.; thence south along the half section line to a point where the east branch of Panther creek intersects the half section line in said section 29; thence in a southwesterly direction, following the present course of the east branch of Panther creek through section 29 and 30 in township [278 Ill. 193]27, north, range 3 east of the third principal meridian, in Livingston county, Ill.; thence westerly along the present course of said east branch of Panther creek, through sections 25, 26, 27, 34, 33, and 32, in township 27 north, range 2 east of the third principal meridian in Livingston county, Ill., to a point where the said east branch of Panther creek intersects the east line of the right of way of the Illinois Central Railroad Company, there to terminate. All of the route of said proposed ditch or drain is more fully shown and is shown on the plat hereto attached and marked Exhibit A and made a part of this petition by reference, and marked on said plat, ‘Route of Proposed Ditch,’ the proposed ditch or drain to be constructed to...