Drainage Dist. No. 5 of Dawson County, In re
| Decision Date | 16 July 1965 |
| Docket Number | No. 35941,35941 |
| Citation | 179 Neb. 80,136 N.W.2d 364 |
| Parties | In the Mater of the Formation of DRAINAGE DISTRICT NO. 5 OF DAWSON COUNTY, Nebraska. Hiddie KUHLMAN et al., Appellees, v. Fred FOLKERS et al., Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. The proceeding for the establishment of a drainage district as a body corporate under Chapter 31, article 3, R.R.S.1943, is purely statutory.
2. In a proceeding for the establishment of a drainage district under Chapter 31, article 3, R.R.S.1943, an objector may properly show that his land will not be benefited by drainage as a basis for the noninclusion of his lands within the proposed district.
3. The feasibility and route of a drainage ditch is an engineering matter and is not an issue for consideration in the organization of a drainage district under Chapter 31, article 3, R.R.S.1943.
4. Where the owner of land included in a proposed drainage district seeks to have such lands excluded on the ground that they will not be benefited, the burden of proof is on him to satisfy the court that they will not be benefited.
5. The fact that it may be necessary for the owner of property in a drainage disstrict to incur expense to avail himself of its benefits is not a valid objection to the inclusion of the land in a drainage district.
6. In determining if lands will be benefited by drainage as provided by Chapter 31, article 3, R.R.S.1943, it is proper to consider whatever will come to the land by drainage to make it more valuable for tillage and more valuable in the general market, the true and final test being what the influence of the proposed improvement will be on the market value of the property.
7. The diversion of seepage and floodwaters by an irrigation canal built across a natural drain carries with it no right on the part of lower landowners to insist on the continuance of such artificial condition in the absence of evidence affording a basis for an equitable estoppel.
8. An upper riparian owner constructing and maintaining an artificial structure diverting the flow of seepage and floodwaters for a purpose advantageous to it is not obligated by mere lapse of time to maintain the structure and the conditions produced thereby, although it incidentally benefits lower landowners.
9. An irrigation district under such circumstances may discontinue the diversion of seepage and floodwaters at any time by restoring them to their original course through which they were wont to run in a state of nature.
10. An estoppel, which would operate as a bar to the return of such waters to the original watercourse existing in a state of nature, requires a change of condition such as the construction of works or the expending of money in reliance on the permanence of the diversion.
Wm. S. Padley, Ogallala, for appellants.
Smith Brothers, Lexington, for appellees.
Heard before WHITE, C. J., CARTER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and WESTERMARK, District Judge.
This is a proceeding commenced under the provisions of Chapter 31, article 3, R.R.S.1943, for the organization of Drainage District No. 5 of Dawson County, Nebraska. Objections were filed to the organization of the district by certain landowners. A trial was had on the application and the objections thereto. The trial court found against the objectors, the proposed drainage district was declared organized as a public corporation, and it was adjudicated that all the real estate described in the application, except one tract that was voluntarily removed, was properly in the district and would be benefited by the proposed improvement. The objectors have appealed.
The drainage district as organized by the trial court contains 1,133.4 acres of land. The proponents are the owners of 631.8 acres. The objectors are the owners of 501.6 acres. The district contains more than 160 acres of wet or overflowed land, as the statute requires, and there is no issue as to that fact. It is the contention of the objectors that they will not be benefited by the improvement and should not be included within the boundaries of the district, and that the purpose and intent of the statute is not met for the reason that the true purpose of the district's organization is to require objectors to receive and drain away waters which are the legal responsibility of others and for which they ought not to be required to pay.
The proceeding for establishment of a drainage district as a public corporation under Chapter 31, article 3, R.R.S.1943, is purely statutory. Objectors to the organization must be excluded from the district if their lands will not be benefited by the improvement. The feasibility and route of the drainage ditch is an engineering problem and is not a matter to be determined in a proceeding for the establishment of the district. If lands within the district will be benefited by the improvement, they are proper to be included within the district. The amount or degree of the benefit is not material in a proceeding to establish the district since the amount and degree of benefit is an issue only in the assessment of benefits. Petersen v. Thurston, 157 Neb. 833, 62 N.W.2d 68. Swamp or overflowed lands within the meaning of the statute apply to lands which from excessive rainfall or other causes retain at some seasons of the year excessive water which damages and renders them unfit for cultivation or profitable use. Petersen v. Thurston, 161 Neb. 758, 74 N.W.2d 528.
The evidence in the case shows the land and water table elevations at 25 stations shown on the plat included in this opinion. It will be observed that the ground water table is high in the north part of the proposed district and along the course of the proposed drainage ditch. At the time of the trial a drainage ditch 6 feet in depth was contemplated, although it would be deeper where land elevations require it to maintain the flow line of the ditch. The fall of the ditch from the north end at station 2 to the south end at station 23 is approximately 10 feet. The fall from station 23 to the rever is 5 feet, which is deemed adequate. Some contention is advanced that the 6-foot ditch is not adequate and that a ditch of 8 or 9 in depth would be much more efficient. The expert testimony is that a ditch of the latter depth would not provide adequate fall to the river at the proposed outlet and would require the turning of the drainage ditch to the southeast, if it could be done at all, to secure adequate fall if the ditch is built at a lower depth. These questions involve engineering problems with which this court cannot concern itself in this proceeding. The engineer for the objectors testified to the probable inefficiency of the 6-foot ditch but concedes that drainage in the area is needed.
The evidence sustains a finding that the highwater table in the area has brought harmful salts and alkali to the surface of the ground and caused an infestation of salt and sedge grasses of little value. This has resulted in the loss of the more valuable native grasses which would be brought back by the drainage of the area. There is evidence that the lands, if drained, would produce other crops in abundance and greatly increase their market value. Some contention is advanced that the drainage ditch would be of little benefit to areas where the water table is lower than the flow line of the drainage ditch such as is found at stations 9, 15, 18, and 25. The evidence is, however, that such areas would be benefited by the construction of the drainage ditch. The extent of the benefits is a matter to be considered in the assessment of the benefits and is not material in the present case.
The evidence shows that the lands of Hayes, Bartlett, Sitorius, H. Folkers, and Kloepping are subject to flooding and will be relieved by the drainage ditch. The other lands are boggy and at times have standing water on them, or in nearby road ditches.
It is argued by some of the objectors that the high water table subirrigates their lands and that they are content with them as they are. This is not, however, a controlling factor. The question is whether or not the land would be benefited by the drainage of their lands. One whose lands are benefited is not permitted to exclude himself from the district merely because he prefers to keep it in its present condition and thereby gain the benefit of the improvement without cost.
The evidence shows that the drainage of the waterlogged lands would not of itself increase the benefits to a maximum. To accomplish such a result it would be necessary for the landowner to level his land and apply irrigation water to it to remove the salts and alkali in a minimum period of time. Objectors argue that the burden of such costs, in addition to the assessments for the contruction of the drainage ditch, should be considered in determining if their lands are benefited by the improvement. In 17A Am.Jur., Drains and Sewers, s. 18, p. 453, it is said: 'The mere fact, moreover, that it may be necessary for the owner of property to incur expense in order to avail himself of the benefits or services afforded by the improvement is not a valid objection to the...
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