Drainage District No. 2 of Canyon County v. Extension Ditch Co.
| Decision Date | 21 June 1919 |
| Citation | 32 Idaho 314,182 P. 847 |
| Parties | DRAINAGE DISTRICT No. 2 OF CANYON COUNTY, IDAHO, and LEE YOUNG, FRANK B. SUPLEE, and D. R. DURHAM, Commissioners, Respondents, v. EXTENSION DITCH COMPANY, a Corporation, M. W. WATTS, JOHN A. BOWERS, PAYETTE NATIONAL BANK, a Corporation, FIRST NATIONAL BANK OF PAYETTE, a Corporation, GORDON E. STONE, and ELIZABETH G. TOOLE, Appellants |
| Court | Idaho Supreme Court |
DRAINAGE DISTRICTS-ORDERS-RES ADJUDICATA-HIGH LANDS-NOTICE, SERVICE OF-EFFECT OF GENERAL APPEARANCE-EMINENT DOMAIN, EXERCISE OF BY DRAINAGE DISTRICTS - DUE PROCESS - DAMAGES, MANNER OF AWARDING AND PAYING - ASSESSMENTS - BENEFITS-RESPONSIBILITY ASCERTAINMENT OF-ENHANCED VALUE-VERDICT-CORRECTION OF RECORD.
1. The order of a district court, made following the hearing of a petition to organize a drainage district, declaring the district organized and defining the boundaries thereof, is not a final order and is not res adjudicata as to any lands excluded from the boundaries of such district thereby; but the statute gives the court express authority to modify or change the boundaries of the district after the hearing upon the report of the commissioners.
2. The term "high lands" as used in C. L., sec. 168:13 may include canals, and if water escapes by seepage from an irrigation canal and contributes to the water-logged condition of the land in a drainage district, the right of way of such canal should be assessed its proportion of the cost of construction of the drainage works, the same as other high lands.
3. Service of notice of the hearings, either on petition for the organization of a drainage district, or on the report of the commissioners thereof, upon the husband, he being the member of the community in whose name community property stands, is sufficient to give the court jurisdiction of the property.
4. A failure to give notice, or any irregularity in giving it, is waived if the persons entitled to notice appear and take part in the proceedings in the matter or matters concerning which they are required to be notified.
5. The provisions of the drainage act, directing the commissioners to examine the land over and upon which the drainage works are to be constructed and to report what lands will be injured thereby and the amount of such injury, and to award to each tract or lot, by whomsoever held, the amount of damages so determined by them, and providing that the land owner may have a jury trial in the district court upon that issue, satisfy the requirements that private property shall not be taken for public use without just compensation or due process of law, and constitute a proper exercise of the right of eminent domain.
6. Held, that the findings as to the amount assessed against the lands herein are supported by the evidence.
7. The term "high lands" as used in the drainage act means lands which will not be enhanced in value by construction of the drainage works, but which contribute by seepage of irrigation water therefrom to the saturation or water-logged condition of "low lands." By "low lands" is meant lands which will be benefited in the ordinary sense i. e., enhanced in value.
8. Benefits to low lands are to be determined in accordance with the enhanced value thereof. Benefits to high lands are to be determined in accordance with the extent to which such lands are responsible for damages to low lands by reason of seepage of irrigation water which contributes to the saturation or water-logged condition of such low lands. The amount of such responsibility will be the proportion which the amount of water contributed by such high lands bears to the combined contribution of water from all sources by irrigation.
9. If a portion of the benefits derived by low lands from the construction of drainage works will arise from enhancement of the value of such lands if they were in their natural state or by changing conditions other than the damage caused by seepage and saturation from irrigation water, such benefits cannot be considered in determining the assessment to be charged to the high lands. After determining the proportion of the cost of drainage works which should be borne by the high lands, the remainder should be apportioned and assessed to the various tracts of low lands according to benefits, based upon enhanced value.
10. A district court may permit the jury to fortify its verdict, or to show by the affidavits of the jurors the verdict which they found and intended to return, and may correct the record of the verdict in conformity therewith, and this may be done after the jurors have been discharged.
APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Isaac F. Smith, Judge.
Proceeding for the organization of a drainage district. Order confirming the report of the commissioners. Affirmed.
Order affirmed. Costs awarded to respondents.
R. E. Haynes and F. H. Lyon, for Appellants.
The wife of a man, owning community property interest in the district is as much a freeholder as the husband, and should be given the same notice of the formation of the district or the levy of assessments on community property as the husband is given. (Hughes v. Latour Creek R. R. Co., 30 Idaho 475, 166 P. 219; 14 Cyc. 1033.)
Service of the notice of the hearing of the petition of confirmation of the commissioners' report must be made in the manner provided for the service of summons in civil action, and service is not permitted to be made by a commissioner of the district. (9 R. C. L. 636, sec. 24; note, Ann. Cas. 1915C, 13 et seq.)
Special assessments are taxes levied according to benefits conferred upon property, and where no benefits will accrue, no assessment can be made.
Land that will not be drained or benefited by the proposed system cannot be assessed for a share of the costs of such system. (9 R. C. L. 645, secs. 44, 45; Page & Jones, Taxation by Assessment, sec. 564.)
In order to justify special assessments, the benefits must be certain, and not remote or speculative. (Page & Jones, Taxation by Assessment, sec. 652; City of Bridgeport v. New York & N.H. R. Co., 36 Conn. 255, 4 Am. Rep. 63; Hartford v. West Middle Dist., 45 Conn. 462, 29 Am. Rep. 687.)
Ed. R. Coulter, for Respondents.
Where record title of community property is in the name of the husband, it is unnecessary that the wife be made party or served with notice of assessment. (Sess. Laws 1913, pp. 58-79; sec. 2686, C. L.; Hall v. Johns, 17 Idaho 224, 105 P. 71; Kohny v. Dunbar, 21 Idaho 258, Ann. Cas. 1913D, 492, 121 P. 544, 39 L. R. A., N. S., 1107; McQueen v. City of Moscow, 28 Idaho 146, 147, 152 P. 799.)
Service of process in this case was sufficient, and appellants by appearing generally waived all irregularities. (Secs. 379, 383, Lewis on Eminent Domain; Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453; Ives v. East Haven, 48 Conn. 272; Milam v. Sproull, 36 Ga. 393; Coolman v. Fleming, 82 Ind. 117; Huston v. Clark, 112 Ill. 344; Knox v. Epsom, 56 N.H. 14; Losey v. Stanley, 83 Hun, 420, 31 N.Y.S. 950.)
Proceedings had by the commissioners were sufficient to acquire rights of way for canals by process of eminent domain provided in the drainage district law. (Secs. 342, 367, 469, Lewis on Eminent Domain; State v. Stewart, 74 Wis. 620, 43 N.W. 947, 6 L. R. A. 394; Goodwine v. Evans, 134 Ind. 262, 33 N.E. 1031; Thomas v. Boise City, 25 Idaho 522, 138 P. 1110; Chaplin v. Highway Commissioners, 129 Ill. 651, 22 N.E. 484; Chronic v. Pugh, 136 Ill. 539, 27 N.E. 415.)
The assessments levied against the lands of remonstrants and others by the commissioners were legally made, and in accordance with the provisions of the drainage act. (City of Elkhart v. Wickwire, 121 Ind. 331, 22 N.E. 342; Hooker v. Rochester, 30 N.Y.S. 297; McGilvery v. City of Lewiston, 13 Idaho 338, 90 P. 348; City of Denver v. Kennedy, 33 Colo. 80, 80 P. 122, 467; Burt v. Farmers' Co-operative Canal Co., 29 Idaho 377, 161 P. 315; Burt v. Farmers' Co-operative Irr. Co., 30 Idaho 752, 168 P. 1078; Oregon Short Line Ry. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 P. 904.)
The court had the right to correct the verdict of the jury to make it conform to the true intent of the jury, and to receive the affidavits of the jurors in support of respondent's motion to correct said verdict.
This is an appeal from an order confirming the report of the commissioners of Drainage District No. 2 of Canyon county.
At the hearing upon the petition for the organization of the district, certain lands of the appellants were, upon stipulation, excluded from the boundaries thereof. The report of the commissioners recommended that these lands be included in the district. The point is sought to be made that the order of the court, excluding such lands, is res adjudicata, and that neither the commissioners nor the court had authority upon the final hearing to include them therein.
The first order, excluding the lands from the district, is not a final order. Furthermore, the statute makes it the duty of the commissioners to determine what additional lands will be benefited or damaged, and the amount of the benefits or damages,...
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