England Pond Drainage Dist. v. Hurst

• Decision Date: 18 June 1931
• Docket Number: No. 20588.,20588.
• Citation: 176 N.E. 733,344 Ill. 610
• Parties: ENGLAND POND DRAINAGE DIST. v. HURST.
• Court: Illinois Supreme Court

344 Ill. 610

176 N.E. 733

ENGLAND POND DRAINAGE DIST.

v.HURST.

No. 20588.

Supreme Court of Illinois.

June 18, 1931.

Proceeding by the England Pond Drainage District against Erastus Hurst. From an order and judgment of the county court, confirming assessment roll, and awarding damages for land taken in repair of levees, defendant appeals.

Affirmed.

Appeal from Lawrence County Court; J. A. Benson, Judge.

T. H. Cunningham, of Lawrenceville, for appellant.

George W. Lackey, of Lawrenceville, for appellee.

STONE, C. J.

This is an appeal from an order and judgment of the county court of Lawrence county confirming the assessment roll of the commissioners of the appellee drainage district and awarding damages to appellant for land taken in the repair of levees of that district.

The errors argued by appellant are that the petition for the repair of the levees did not contain sufficient allegations to support the verdict; that the plans and specifications submitted were not sufficient; that the commissioners failed to show that it was necessary to take land of appellant to complete the work; and that sufficient notice of the proceeding was not given.

Appellee drainage district was organized over thirty years ago under the Levee Act and has since maintained a system of ditches and drains within its borders. During the year 1929 it constructed a levee along the eastern border of the district to protect the low lands therein from overflow waters of the Wabash and Embarrass rivers. During the high waters of the winter of 1929 and 1930 the levees were damaged at places, one of which was on the lands of appellant. On June 17, 1930, the commissioners filed a petition under section 37 of the Levee Act (Smith-Hurd Rev. St. 1929, c. 42, § 37) for the repair of the levee and to build a sewer in one of the ditches in the district. They attached to their petition the plans and specifications of their engineer as to the work to be done and the financial statement of the district, as required by the statute, and prayed that an assessment be extended against the lands, railways, and highways in the district for the repair of the levees and for the amount of money spent for the protection of the levees in the emergency arising out of the high waters of the winter preceding. It appears that notice was given and that a hearing was had on that petition. The court found that the benefits to accrue to the property within the district would amount to the sum of $6,500 and directed the commissioners to make an assessment roll for that amount against the lands, railways, and highways of the district. Thereafter the commissioners filed a roll of assessments, benefits, and damages, and also filed a petition stating it was necessary to take certain property, including that of appellant, for the purpose of repair of this levee, for a right of way to build the proposed addition to the levee and to get dirt for its construction, and that they had endeavored to come to an agreement with appellant and one John Brevoort but could not, and prayed that a...