Drainage Dist. No. 100 of Grant County, In re

• Decision Date: 03 February 1956
• Docket Number: No. 33840,33840
• Citation: 74 N.W.2d 528,161 Neb. 758
• Parties: In the Matter of DRAINAGE DISTRICT NO. 100 OF GRANT COUNTY, Nebraska, a Public Corporation. Dorothy PETERSEN, George S. Petersen et al., Appellees, v. Mamie A. THURSTON and Clyde A. Thurston, Appellants.
• Court: Nebraska Supreme Court

Page 528

74 N.W.2d 528

161 Neb. 758

In the Matter of DRAINAGE DISTRICT NO. 100 OF GRANT COUNTY, Nebraska, a Public Corporation.

Dorothy PETERSEN, George S. Petersen et al., Appellees, v. Mamie A. THURSTON and Clyde A. Thurston, Appellants.

No. 33840.

Supreme Court of Nebraska.

Feb. 3, 1956.

Syllabus by the Court.

1. In levying assessment benefits by a drainage district, that portion of land actually appropriated and taken by the district for the right-of-way of the ditch should not be assessed to the landowner from whose premises it is taken.

2. The validity of drainage classification and assessment of benefits can be questioned only by those parties who are prejudiced or injured thereby.

3. Upon appeal to the district court from the decision and judgment of the board of supervisors of a drainage district, all original objections made to the classification and assessment of benefits are heard and determined in a summary manner as in equity, and upon appeal therefrom to this court the cause is tried de novo.

4. Upon such an appeal to the district court, the drainage district is the moving party and has the burden of proving the validity of the classification and the amount of the benefits by a preponderance of the evidence.

5. The manner and extent of such classification and benefits are best known and understood by engineers who are experts in the matter of drainage, and when, as required by statute, the district engineer has examined the land and made his report to the board of supervisors of the drainage district which has approved same, it furnishes prima facie evidence of the classification and benefits, and in the absence of fraud, such evidence is sufficient to sustain the decision and judgment of such board unless it is overcome by competent evidence to the contrary.

6. A uniform and exact classification and assessment of benefits is impossible, and it is sufficient if the classification and assessment of benefits to each tract of land is made upon a uniform plan which is fair and just under the evidence with relation thereto. However, if it clearly appears that the classification and assessment made is arbitrary and unreasonable or is made in violation of statutes with relation thereto in such manner as to prejudice or injure an objector, the court will intervene to protect him.

7. In determining the assessment of benefits accruing to land by reason of the construction of a drainage ditch, it is proper to take into consideration whatever will come to the land from the drain to make it more valuable for tillage, or more desirable as a place of residence, or more valuable in the general market, the true and final test being what will be the influence of the proposed improvement on the market value of the property.

Charles A. Fisher, Chadron, for appellants.

William B. Quigley, Valentine, Davis, Healey, Davies & Wilson, Robert Berkshire, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Mamie A. Thurston and her husband Clyde A. Thurston, hereinafter called defendants, appealed to the district court from the decision and judgment of the board of supervisors of Drainage District No. 100 of Grant County, hereinafter called the district, which overruled defendants' objections and approved the report of the district engineer classifying and assessing 174 acres of defendants' land for benefits thereto by proposed construction thereon of drainage works and improvements. After a hearing whereat evidence was adduced by the parties, the trial court rendered a judgment which approved and affirmed the decision and judgment of the board of supervisors, hereinafter called the board. After describing each tract of land within the district and naming the respective owners thereof, the judgment provided: 'It is further ordered that the total acreage of each land owner to be equally benefited and equally assessed in this drainage district is as follows: Rolf H. Brennemann--291.50; Kurt W. Brennemann--70.0; George S. Peterson--31.0; Dorothy A. Petersen--117.50; Bert Hayward--84.50; William L. Hayward--17.0; Mamie A. Thurston Clyde A. Thurston and Clyde Chester Thurston, as theri (their) separate interests may appear--174.0. Total acres equally benefited--785.50, and that the costs and expenses incurred by this drainage district shall be assessed equally on such acre unit in that the benefits to each unit acre will be uniform.' Costs were taxed to defendants.

Motion for new trial filed by defendants and Chester Thurston, their son who claimed to have an interest in some of defendants' property involved, was overruled, whereupon defendants appealed to this court assigning substantially that the judgment of the trial court was not sustained by the evidence but was contrary thereto and contrary to law. We conclude that the assignments should not be sustained.

No question is raised or presented here with regard to procedure followed prior to or in the hearing before the board or upon appeal to the district court or this court. The named members of the board appear herein as ostensible appellees. Such persons, as well as others who were members of the district, except defendants, will be hereinafter designated by name.

Petersen v. Thurston, 157 Neb. 833, 62 N.W.2d 68, was a proceeding instituted in the district court for Grant County for the purpose of organizing the district here involved. Therein defendants, who concededly did not sign the original articles and application, filed objections to the inclusion of their land within the district upon the ground that the land would not be benefited in any manner thereby. The trial court in such proceedings found and adjudged that defendants' land would be benefited, and included it within the district. Upon appeal therefrom we affirmed such finding and judgment.

Therefore, defendants' contention in the case at bar that their land would not be benefited in any respect by the proposed drainage works and improvements has already been adjudicated and the only questions now presented for determination here are as follows: (1) Whether or not, as contended by defendants, the trial court erred in affirming an assessment allegedly made by the decision and judgment of the board not only upon that portion of defendants' land actually taken for construction of the ditch but also that portion adjacent to the borders of the ditch, the use of which was reserved by the district for purposes of operation and maintenance if and when such became necessary; and (2) whether or not, as contended by defendants, the trial court erred in affirming the assessment made by the district engineer and approved by the board upon 174 acres of their land. We conclude that the trial court did not err in affirming the assessment as made.

With regard to defendants' first contention, the record discloses that the ditch on defendants' land would be 4 feet wide at the bottom, with 1:1 slopes which would slightly vary the width of the ditch at the top, dependent upon the depth of the ditch as it was constructed along and over defendants' low lands. A note appearing upon exhibit 1, a plat prepared by the district engineer and received in evidence, read: 'It is necessary that a 4-rod wide right of way, extending 2 rods to each side of the center line of all of the drain canals of the District, shall be reserved for the purpose of operation and maintenance of all such canals if and when such maintenance should become necessary.' Thus, the reserved conditional use of such land on each side of the borders at the top of the ditch was not land actually taken and appropriated by the district as a right-of-way of the ditch. Thereby the district simply reserved an easement over such portion to be used by it only for operation and maintenance purposes if and when that should become necessary. There is no evidence whatever that such use would be perpetual or necessary at all times so as to deprive defendants of that land and the use thereof. The only logical inference in the absence of any other evidence with relation thereto is that defendants would have the beneficial use of such well-drained portion of their land right up to the borders of the ditch and that such portion should have been assessed.

In Nemaha Valley Drainage Dist. v. Stocker, 90 Neb. 507, 134 N.W. 183, this court held: 'In levying an assessment by a drainage district, that portion of land taken for the right of way of the ditch should not be assessed to the landowner from whose premises it is taken.' In the opinion it is said: 'It is clear that, if the land is taken from appellant by the construction of the ditch, he ought not to be compelled to pay for benefits to property of which he is deprived by the very act of construction. We think this was erroneous, and the appellant is entitled to be relieved from the assessment to the extent that it is based upon land actually appropriated by the district.' See, also, 28 C.J.S., Drains, § 57, p. 404; 19 C.J., Drains, § 211, p. 717, and authorities cited.

The land actually appropriated and taken from defendants as a right-of-way of the ditch was only that portion necessary for construction thereof. In that connection, the shaded portions of land outlined upon exhibit 1 and verified by testimony of the district engineer show that 175.5 acres of defendants' land would be equally benefited by the drainage works and improvements, but concededly only 174 acres thereof were classified and assessed. Thus, contrary to defendants' contention, 1.5 acres of defendants' land which was actually taken and appropriated by the district for right-of-way of the ditch was not assessed. In that connection, defendants have failed to adduce any evidence which would sustain a conclusion that they were deprived of any more of their land by actually taking the same or by the very act of construction.

We turn then to defendants'...