Fargo v. Aaseth (In re Yankton-Clay Cnty. Drainage Ditch)

• Decision Date: 01 October 1912
• Parties: In re YANKTON-CLAY COUNTY DRAINAGE DITCH. FARGO et al. v. AASETH et al.
• Court: South Dakota Supreme Court

30 S.D. 79

137 N.W. 608

In re YANKTON-CLAY COUNTY DRAINAGE DITCH.

FARGO et al.

v.AASETH et al.

Supreme Court of South Dakota.

Oct. 1, 1912.

Appeal from Circuit Court, Yankton County; R. B. Tripp, Judge.

Drainage proceedings by John O. Aaseth and others, to which James S. Fargo and others filed objections. From a decree of the circuit court in favor of petitioners and overruling objections and remonstrances previously sustained by the Boards of County Commissioners of Yankton and Clay Counties, objectors Fargo and others appeal. Affirmed.

McCoy, P. J., and Whiting, J., dissenting.H. G. Tilton, of Vermilion, and C. H. Dillon, of Yankton, for appellants.

French & Orvis, of Yankton, for respondents.

CORSON, J.

On the 5th day of August, 1909, a petition, signed by P. J. Conklin and about 50 others living in Yankton and in Clay counties, S. D., was filed with the boards of county commissioners of said counties, praying that a drainage ditch be established, commencing near the Chicago, Milwaukee & St. Paul Railroad track some two or three miles west of Gayville, and extending generally in a southeasterly course south of said railroad track through Yankton and Clay counties to the Vermilion river. A copy of the petition so filed with the board of county commissioners of Yankton county was forwarded to the state engineer, as required by section 1 of chapter 102 of the Laws of 1909, relating to drainage. The appellants herein, and certain other owners of land along the line of the said proposed ditch, opposed the construction of the same and filed a remonstrance. Notwithstanding the favorable report of the engineer employed by the county commissioners to report on the feasibility of the project, the objections of the remonstrants were adopted by the boards, and they severally refused to grant the petition of the petitioners. From the orders so made by the county commissioners denying the petition, the petitioners took an appeal to the circuit court of Yankton county. Upon the trial of the case by the court without a jury, the order of the boards was reversed, and the court, after finding the facts as to the preliminary proceedings, found as follows:

“(4) That thereafter the McDaniel-Trimmer Company became, or was succeeded by the Missouri Valley Engineering Company, and under and in pursuance of said contract made a careful and complete survey of the territory proposed to be affected by the Yankton-Clay county ditch. Said territory consists of a wide, flat tract of land of about 30,000 acres, lying between the Chicago, Milwaukee & St. Paul Railroad on the north and the Missouri river on the south, in Yankton and Clay counties. *** The general slope of said tract of land is southeasterly, and the ground, generally considered, is very flat, rising gradually toward the Missouri river. The main line of said proposed drainage, as surveyed and recommended by said engineering company, commences at a point 1,132 feet west of the southeast corner of section 4, township 93 north, range 54 west, and runs in a generally southeastern direction to the Vermilion river; the total length of the main ditch being 17.38 miles.

“(5) The court finds that said entire tract of land is low, wet land, and the general slope thereof is in a southeasterly direction toward the Vermilion river along the line of said proposed main drainage ditch; that in rainy seasons large portions of the land which will be affected by said drainage ditch cannot be advantageously cultivated because of excessive moisture, and that water stands in what is termed and Gayville slough, near the town of Gayville, and at other places the year around; that such water becomes stagnant, so much so that at times green scum forms upon it, and water commonly stands in the cellars of houses in the town of Gayville and elsewhere in the territory which will be affected by said proposed drainage.

“(6) The court finds that the construction of said main drainage ditch, as described in the report of said Missouri Valley Engineering Company, will furnish a satisfactory outlet for such lateral drains as may be necessary to completely and effectually drain the tract of land hereinbefore described, and that such main drainage ditch will be conducive to the public health, convenience, and welfare, and is necessary and practicable for draining agricultural lands.

“(7) The court further finds that the portion of the land along the main line of said proposed drainage system lying in Yankton county, if drained at all, must be drained through Clay county to the Vermilion river substantially along the lines of said proposed drainage ditch, and that no part of the land which will be affected by said proposed drainage system can be drained directly into the Missouri river in times of high water, when drainage is most needed. ***”

From the foregoing findings of fact, the court found as conclusions of law:

“(1) That the Yankton-Clay County Drainage ditch, as in the foregoing findings generally described, and as more particularly described in the report of the survey of the Missouri Valley Engineering Company in said findings referred to, should be established, and should be constructed under the direction of the county commissioners of said counties, acting conjointly.

“(2) The appellants herein are entitled to judgment establishing said drainage ditch and reversing the order or resolution of the boards of county commissioners of Yankton and Clay counties, from which the appeal hereinbefore referred to was taken; and said judgment should direct the county commissioners of Yankton and Clay counties to proceed with the construction of said drainage ditch in the manner required by the law relating to and prescribing the procedure of county commissioners subsequent to the establishment of a drainage ditch. Let judgment be entered accordingly.”

From the judgment of the circuit court so entered, an appeal was taken to this court by Fargo, Jetley, Junker, and Lund, the four appellants named herein.

[1] Upon the case being called for trial in the circuit court a motion to dismiss the appeal was made by the respondents therein, on the ground that the orders appealed from were not judicial; that they were official and not appealable; and that the court was without jurisdiction to entertain an appeal from said orders. This motion was denied by the court, and its denial is made ground for the first, second, and twenty-fifth assignments of error.

Section 9 of chapter 102, Laws of 1909, amending section 12 of chapter 134, Laws of 1907, among other things, provides: “An appeal will lie upon any final order or determination of a board of county commissioners establishing or denying the proposed drainage *** to the circuit court of the county in which said drainage is located, by any one deeming himself aggrieved by any such order or determination.”

It is contended by the appellant that the provisions in the law allowing an appeal from the decision of the board of county commissioners is unconstitutional, for the reason that the action of the board of county commissioners is administrative and not judicial, and that their decision contains matters of discretion and administrative matters that are not subject to review by appeal; and for the further reason that section 6 of chapter 21 of the state Constitution of this state, adopted in 1906, provides that the Legislature “may provide for the organization of drainage districts for the drainage of land for any public use, *** and may vest the corporate authorities of counties, townships and municipalities with the power,” etc.

It is contended, however, by the respondents on this appeal that this is not an open question in this court, as this court decided, in Re Sorenson Drainage Ditch, 131 N. W. 300, that an appeal will lie from the decision of the boards of county commissioners in drainage cases establishing or refusing to establish drainage ditches, which decision is sustained by the previous decisions of this court in the analogous case of Davison County v. C., M. & St. P. R. R. Co., 26 S. D. 57, 127 N. W. 728, and also in the analogous cases of Pelletier v. City of Ashton, 12 S. D. 366, 81 N. W. 735, and Wickhem v. City of Alexandria, 23 S. D. 556, 122 N. W. 597.

We are of the opinion that the respondents are right in their contention, and that the question of the right of appeal from the decision of boards of county commissioners in the matter of drainage ditches is fully established in this jurisdiction. It will be noticed in the clause of the Constitution above quoted there is no limitation of the right to appeal from the decision of boards of county commissioners in the matter of drainage ditches, and that the right of such appeal is not taken, therefore, directly or by implication. While it is true there is a conflict in the authorities as to the right of appeal in this class of cases, this court has followed the line of decisions holding that the right of appeal exists, and that the appellate court has full jurisdiction to hear and determine the questions arising in such proceedings.

The general clause, also, in the Political Code, authorizing appeals from all orders of the board of county commissioners, has uniformly been construed to give the right of appeal in this class of cases since the decision of the territorial Supreme Court in Pierre Water Works Co. v. Hughes County, 5 Dak. 163, 37 N. W. 733. The necessity for such right of appeal will be apparent to all persons familiar with the influences that may be brought to bear upon county commissioners and city councils, and the importance to the people of the right of appeal to a court which will be less likely to be influenced in the determination of questions presented in such proceedings. Without impugning any improper motives to the county commissioners of Yankton and Clay counties, the importance of the question presented in the proceedings now before us, involving as it does the...