Drainage Dist. No. 100 of Grant County, In re, 33363
| Decision Date | 08 January 1954 |
| Docket Number | No. 33363,33363 |
| Citation | 62 N.W.2d 68,157 Neb. 833 |
| Parties | In re DRAINAGE DIST. NO. 100 OF GRANT COUNTY. PETERSEN et al. v. THURSTON et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The proceeding for the establishment of a drainage district as a corporate body under Chapter 31, article 3, R.R.S.1943, is purely statutory as distinguished from an action in court to adjudicate issues.
2. In a proceeding for the establishment of a drainage district as a corporate body under Chapter 31, article 3, R.R.S.1943, objectors may object to the organization only on the ground that their land will not be benefited by drainage and should not be included.
3. In order that a district may be organized under Chapter 31, article 3, R.R.S.1943, it must be made to appear that 160 acres or more in a contiguous body of swamp or overflowed lands will be reclaimed and protected from the effects of water by the drainage.
4. The feasibility and route of a drain is not a matter for consideration in the organization of a district under Chapter 31, article 3, R.R.S.1943.
5. The fact that lands other than those included in the proposed district might be benefited is not a bar to organization.
6. A "contiguous body of swamp or overflowed lands," within the meaning of the statute, includes adjoining lands in the same course of drainage and those bodies of land which though separated are so close together that each affects the other.
7. The fact that lands which will not be benefited are included in a proposed district may not be regarded as a bar to organization of the district, provided a contiguous body of 160 acres or more which will be benefited remains.
8. Where the owner of lands included in a proposed district seeks to have such lands excluded on the ground that they will not be benefited, the burden is on him to satisfy the court that they will not be benefited.
9. Where an inspection of premises is made by the trial court in relation to issues involved such inspection becomes a matter of evidence to be considered by this court on appeal.
Charles A. Fisher, Chadron, for appellants.
Gantz & Williams, Alliance, Quigley & Heth, Valentine, for appellees.
Heard before SIMMONS, C.J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an action instituted under the provisions of Chapter 31, article 3, R.R.S.1943, for the organization of a drainage district. The lands described in the articles of association and application to form the district are situated in Grant County and Cherry County, Nebraska. The larger portion of the lands are in Grant County, hence as required by statute the articles were filed in that county. Section 31-302, R.R.S.1943.
The provisions of the statute were complied with as to the filing of the articles and the issuance and service of process. Six land owners having ownership of 611.5 acres which it is alleged would be benefited by the organization of the district signed the articles and application. These lands were of course included in the proposed district. Also included in the proposed district were 174 acres of land belonging to Mamie A. Thurston and Clyde Thurston. The Thurstons did not sign the articles but filed objections to the organization. They were designated as objectors and the signers of the application were designated as petitioners.
A trial was had on the application and the objections thereto, at the conclusion of which the objections were overruled, the proposed drainage district was declared organized as a public corporation, and it was adjudicated that all of the real estate described in the application was properly in the district and would be benefited. The designated name of the district was Drainage District Number 100 of Grant County, Nebraska.
From this adjudication Mamie A. Thurston and Clyde Thurston have appealed. They will be referred to hereinafter as appellants. The designated appellees are the owners of the 611.5 acres of land in the district not owned by the appellants. They will be referred to hereinafter as appellees.
At the outset of the consideration of this appeal it is to be observed that the proceeding for the establishment of a drainage district as a corporate body such as the one under consideration is purely statutory and is governed by four sections of the statute, namely, sections 31-301 to 31-304, inclusive, R.R.S.1943.
It is to be further observed that under the statute objectors may object to the organization only on the ground that their land will not be benefited by drainage, and should not be embraced in the drainage district. Section 31-304, R.R.S.1943.
It is also to be observed that before a district may be organized it must be made to appear that there are 160 acres or more in a contiguous body of swamp or overflowed lands which will be reclaimed and protected from the effects of water by drainage or otherwise. Section 31-301, R.R.S.1943.
Again in case the court shall find that a portion of the land described in the application will not be benefited by the district such portion may be excluded and the remainder declared a district provided the remainder contains 160 acres or more of land. Section 31-304, R.R.S.1943.
As a ground for reversal the appellants say the court erred in holding that the proposed drain was more feasible than another which was suggested. This subject may not be properly presented in this action. The right to organize, which right depends upon the question of whether or not there will be benefits, is the only subject of which the court may take cognizance in this action. That is the only subject embraced in the four sections of the statute under consideration here.
It is true that feasibility and route of drain is a matter for consideration in a drainage district such as this but that is a matter for engineering determination after the organization of the district. Section 31-310, R.R.S.1943.
It is urged as an objection to the organization of the district that, assuming that the lands of appellants were properly in the proposed district, other lands which would benefit were not included. This is not a valid objection. The fact that lands have not been included which would be benefited by the organization of the district is no bar to organization. A remedy is provided but that remedy is not refusal to allow organization. The remedy is to bring them in after organization. The remedy is provided by section 31-320, R.R.S.1943.
Another objection is based upon the contention that it was not shown that the application...
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