Freesen v. Scott Cnty. Drainage & Levee Dist.

• Decision Date: 07 June 1918
• Docket Number: No. 12030.,12030.
• Citation: 119 N.E. 625,283 Ill. 536
• Court: Illinois Supreme Court
• Parties: FREESEN et al. v. SCOTT COUNTY DRAINAGE & LEVEE DIST.

283 Ill. 536

119 N.E. 625

FREESEN et al.

v.SCOTT COUNTY DRAINAGE & LEVEE DIST.

No. 12030.

Supreme Court of Illinois.

April 17, 1918.

Rehearing Denied June 7, 1918.

Error to Scott County Court; F. C. Funk, Judge.

Petition by William F. Freesen and others against the Scott County Drainage & Levee District. To review a judgment of the county court approving and confirming an assessment roll for the Drainage District, petitioners bring error. Affirmed.A. G. Crawford, and William & Barry Mumford, all of Pittsfield, for plaintiffs in error.

J. M. Riggs, of Winchester, and Anderson & Matthews, of Pittsfield, for defendant in error.

CRAIG, J.

The defendant in error, the Scott County Drainage & Levee District, was organized on May 3, 1909, under the Levee Act, as a drainage district, in the county court of Scott county. It embraces approximately 9,000 acres of bottom lands in that county lying south of Mauvaisterre creek, a tributary of the Illinois river, and between the bluffs bordering the Illinois river valley on the east and the Illinois river on the west. The original plan contemplated the construction of a levee along the east bank of the Illinois river on the west line of the drainage district, and another levee a short distance along the south bank of Mauvaisterre creek on the north. In addition to the construction of levees the plan provided for one main and two lateral ditches and a pumping station. The system was designed to protect the lands in the district from overflow and afford a complete and adequate system of drainage for all the lands of the district. The original estimated cost of the improvement was $178,237.84, which proved insufficient, and subsequently an assessment of $40,040.38 was levied, making the total cost of the improvement $218,278.22. It was subsequently discovered that the improvement as constructed did not afford adequate drainage for a large portion of the lands in the district, and on February 10, 1916, two of the commissioners filed their petition in the county court of Scott county, alleging that the system of drainage as provided did not afford sufficient and proper drainage for all the lands in the district; that there should be made some five open ditches and one tile drain which were not, but should have been, planned and included in the original work, and that each and all of the proposed new ditches were necessary for the drainage of the lands of the district. A hearing was had on the petition March 17, 1916, and an order was entered granting the prayer of the petition and finding that the lands were not properly and sufficiently drained; that there should be made five new open ditches and one tile drain which were not, but should have been, planned and included in the original work of the district in order to furnish adequate and fair drainage for the lands of the district, and that the benefits to accrue to the lands of the district from such improvement would exceed its total cost, and ordering that the commissioners proceed to levy an assessment of $40,150 for the purpose of making such improvement. On August 16, 1916, before the assessment in question was spread, the commissioners, deeming that other lands than those included within the district would be benefited by the proposed improvement, filed their petition in said court for the annexation of about 1,000 acres of land lying outside and immediately north of the district and south of Mauvaisterre creek. A hearing was had on this petition at the following September term of court, and an order entered annexing such lands, and directing that the assessment theretofore ordered be spread upon all of the lands of the district, including those annexed. Thereafter the commissioners proceeded to spread the assessment in accordance with the direction of the court, and the cause came on for hearing before the court and jury on the application for the confirmation of the assessment roll. A trial was had and a verdict returned by the jury making some slight changes in the assessment roll as made by the commissioners, and judgment was entered on the verdict approving and confirming the assessment roll as changed by the jury. This writ of error has been sued out to review such judgment of the county court.

The proceedings for this assessment were instituted under section 37 of the Levee Act. Plaintiffs in error insist that this was erroneous, and that the proceedings must be had under section 59 of that act, which provides for the organization of subdistricts. As originally constructed, the main ditch, which is designated as ditch No. 3, intersects the levee along the east bank of the Illinois river about two miles north of the south end of the district, extends east approximately 3 miles, then north about half a mile, and east a quarter of a mile. Lateral ditch No. 1 intersects the main ditch about half a mile from its outlet, and extends in a southeasterly direction about three miles, and lateral ditch No. 2 intersects the main ditch about a mile from its outlet and extends north approximately 3 1/2 miles. A pumping station was constructed a short distance from the point where the three ditches converge. The new ditches it is proposed to construct are located as follows: Ditch No. 4 intersects lateral No. 2 about 2 1/4 miles north of the main ditch and extends east about 2 miles. Ditch No. 5 intersects ditch No. 4 about a mile east of lateral No. 2 and extends north three-quarters of a mile. Ditch No. 6 intersects main ditch No. 3 opposite the mouth of ditch No. 1, and extends in a northeasterly direction about 2 1/4 miles. Ditch No. 7 intersects this ditch about three-quarters of a mile south of its north terminus, and extends west half a mile. Ditch No. 8 intersects lateral No. 1 about one-half a mile south of the main ditch, and extends east parallel with the main ditch about 1 1/2 miles.

From the foregoing statement of the location of the ditches it will be seen that the new ditches proposed to be constructed drain no particular tract or tracts or locality in the district, but are designed to drain the lands generally of the district. The plan is one for the whole district, and of a character which could not well be made by the organization of subdistricts. The plan of drainage contemplated by section 37 of the Levee Act is entirely separate and distinct from that contemplated by section 59. Proceedings under section 37 are appropriate wherever the contemplated improvement is necessary for the adequate drainage of the whole district, and is intended for that purpose, and the section provides for the construction of an improvement of such general character that it should have been included in and made a part of the original improvement. Section 59 was intended to provide for the organization of subdistricts whenever it appeared that some portions only of the lands in the district are not sufficiently drained by reason of the peculiar location and situation of the lands which are thus in need of more minute and particular drainage. Sangamon & Drummer Drainage District v. Illinois Central Railroad Co., 272 Ill. 374, 112 N. E. 64. In this case the improvement contemplated being of a general nature and apparently of benefit to all the lands in the district, the proceedings were properly instituted under section 37 of that act.

It is to be observed that one of the contested questions of fact on the trial was as to whether or not all of the lands in the district or just those which were adjacent to the proposed new ditches would be benefited by the improvement. Each side introduced testimony upon this question, and there is some conflict in the evidence as to whether or not the proposed improvement will be a general benefit to each tract of land in the district. This question was submitted to the jury under proper instructions as to their duty in making up the assessment roll, and they have found by their verdict that each piece of property in the district will receive some benefit and have recast the assessment roll in accordance with such finding. The verdict of the jury has been approved by the trial court, and we are unable to say from a review of the evidence that the conclusion reached by them is so contrary to the great weight of the evidence as to justify a reversal of their finding in this court.

For the above reasons we think the point made that the proceedings should have been under section 59 instead of section 37 is not well taken.

It is further insisted that the court should have dismissed the proceedings for want of jurisdiction of the persons of the landowners. This contention is based upon an alleged insufficiency of the notices given of the hearing of the petition in the county court for leave to levy the assessmenton the lands of the district for the purpose of providing funds with which to construct the proposed improvement. The point made is that the notices do not describe the starting points, routes, and termini of the proposed new ditches. With respect to this matter the notices state:

‘The proposed new open ditches and the proposed new tile drain are shown and described and the details of estimated cost thereof fully appear in said petition and the several exhibits filed in said court therewith, and the proposed new levee, with the starting point, course and termini thereof, is described as follows' (fully describing the same).

It is not claimed the description in the petition is insufficient, or that the description of the levee in the notice is insufficient. Section 37 of the Levee Act provides that notice of the hearing shall be given in the manner required by section 3 of the act. Section 3 provides that three weeks' notice shall be given by posting notices at the courthouse of the county in which the district is located and in at least ten other public places in said proposed district, and by publishing at least once a week for three consecutive weeks in some newspaper...