Funkhouser v. Randolph

• Decision Date: 20 February 1919
• Docket Number: No. 12031.,12031.
• Citation: Funkhouser v. Randolph, 287 Ill. 94, 122 N. E. 144 (Ill. 1919)
• Parties: FUNKHOUSER et al. v. RANDOLPH et al.
• Court: Illinois Supreme Court

287 Ill. 94

122 N.E. 144

FUNKHOUSER et al.

v.RANDOLPH et al.

No. 12031.

Supreme Court of Illinois.

Feb. 20, 1919.

Appeal from Wayne County Court; J. V. Heidinger, Judge.

Petition by J. J. Funkhouser and others to organize the Little Wabash River Drainage District under Laws 1917, p. 372. The organization of the District was opposed by Catherine Randolph and others. From a judgment dismissing the petition, C. A. French and others appeal. Affirmed.

Creighton & Thomas and Boggs & Boggs, all of Fairfield, for appellants.

Noah C. Bainum, of Springfield, Charles T. Randolph, of Carmi, Dobbins & Dobbins, of Champaign, and Mills & Forth and William T. Bonham, guardian ad litem, all of Fairfield, for appellees.

DUNCAN, C. J.

The Illinois Legislature passed a special act in force June 26, 1917, entitled:

‘An act to provide for the organization of Little Wabash River drainage district and for the changing and improvement of the channel of Little Wabash river and its tributaries by special assessments on the property benefited thereby.’ Laws 1917, p. 372.

Sections 1, 2, 3, 4, 7, 8, and 2o of said act are as follows:

‘Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly: That, for the purpose of straightening, enlarging, deepening, embanking, changing and constructing new or improved outlets or otherwise improving the channel, or any part thereof, of the Little Wabash river and the bayous, lagoons and lesser streams tributary thereto, below the mouth of Miller creek, in the town of Mt. Erie, Wayne county, Illinois, for a more free flow of water and protection from overflow, a river drainage district to be known as Little Wabash River drainage district may be organized as hereinafter provided.

‘Sec. 2. Said district may include all contiguous territory so situate that the water from such territory naturally flows or is drained into said Little Wabash river, and any fifty or more adult landowners owning at least ten thousand acres of land in said territory may file a petition in the county court of the county in which the greater portion of the lands of said territory shall lie praying that steps be taken to organize such territory into Little Wabash River drainage district under the provisions of this act.

‘Sec. 3. Said river drainage district may include within its limits the whole or any part of the lands of any drainage district organized under any law of this state for the drainage or protection of lands from overflow for agricultural, sanitary or mining purposes when the water of said lands flows or is drained into said Little Wabash river or when said stream is the outlet of the drains or ditches of said drainage district, and such lands shall be a part of said river drainage district and may be assessed for the construction of the work of said river drainage district.

‘Sec. 4. The petition for the organization of the district shall state that petitioners propose the organization of Little Wabash River drainage district under the provisions of this act, and the boundaries of the territory to be embraced therein; that the water of the lands lying within the boundaries of said district naturally flows or is drained into said river, and that said lands are contiguous and will be benefited by the improvement of the channel of said river; that Little Wabash River drainage district embracing said lands should be organized for the purpose of improving the channel of said stream or the tributaries thereof, for a better outlet and more free flow of the water or protection from overflow of said lands, for agricultural and sanitary purposes, by special assessments upon the property benefited thereby. And the petition may pray for the organization of Little Wabash River drainage district with the boundaries proposed, and for the appointment of commissioners for said district for the execution of such work as may be feasible and necessary for the improvement of said stream and its tributaries under the provisions of this act. * * *

‘Sec. 7. The county court in which said petition shall be filed may hear the petition at any probate or common law term, and may determine all matters pertaining thereto, and may adjourn the hearing from time to time, or continue the same for want of sufficient notice, or other good cause. Upon application of the petitioners the court shall permit the petition, affidavit and other papers and orders in the case to be amended, and no petitioner shall be permitted to withdraw from said petition, except by the consent of the other petitioners thereon, or where it shall be shown to the satisfaction of the court that the signature of the petitioner was obtained by fraud or misrepresentation. And said court may hear all matters and make any orders pertaining to the organization of said district, or any of the business of said district, during any probate or common law term thereof.

‘Sec. 8. At the time fixed for the hearing of said petition any person owning or having any estate in any land in said district, and any municipal or other corporation that may be affected by the organization of said district, may file an answer to said petition and contest the necessity of the organization of the district or the location and boundary thereof, and the petitioners and contestants may offer any competent evidence in regard thereto. All persons not answering the petition by said time, or within such further time as the court may allow, shall be defaulted by the court and such default shall be conclusive that such persons consent to the organization of said district and have assented to and accepted the provisions of this act. If it shall appear to the court that the boundaries of the district as proposed in the petition do not embrace all the lands that will be benefited by the improvement of said river, or that lands are embraced therein that will not be benefited and are not necessary to be included in said district for any purpose, the court may change said boundaries so as to include or exclude all such lands; but no such lands shall be included in said district without giving notice of the proposal to include such lands to the owners thereof for the time and in the manner provided in section 6 of this act, and the court may continue the hearing as to the owners of such lands for the giving of said notice. And if it shall finally appear to the court, after hearing any and all competent evidence that may be offered for and against the petition and for and against the inclusion of other lands in the proposed district, that all or the major portion of the lands embraced in the boundaries of the proposed district, or said lands and other lands lying outside said boundaries and contiguous thereto, are contiguous and that the water of said lands naturally flows or is drained into said Little Wabash river and said land will be benefited for agricultural and sanitary purposes by improving the channel of said stream for a better outlet and more free flow of water or protection from overflow, the court shall so find; and such findings shall be conclusive of such facts and not subject to review on appeal or writ of error; and such findings shall be conclusive upon all the landowners of said district that they have assented to and accepted the provisions of this act. If, after being sufficiently advised and informed in the premises, the court finds that Little Wabash River drainage district should be organized for the purpose of improving said river, it shall order and adjudge that the said Little Wabash River drainage district bounded as follows, * * * is duly established as provided by this act, and said findings and judgment shall be entered at large upon the records of said court. Said judgment shall be final and shall not be questioned or attacked in any collateral proceeding, and every presumption shall be indulged in favor of the jurisdiction of the court and the validity of said judgment. If the court shall find against the petitioners the petition shall be dismissed at their cost. Separate or joint appeals and writs of error to review said judgment may be taken to the Supreme Court by the parties affected thereby. But no appeal from said judgment shall be heard unless the same shall be perfected within thirty days after the entry of said judgment, and no writ of error shall issue to review said judgment unless sued out within four months after the entry of said judgment had been entered against him and did not have an opportunity to appear in said court and move to set aside said default. The granting of an appeal or writ of error to one or more persons, or the reversal of said judgment upon such appeal or writ of error by such person or persons separately or jointly shall not impair nor invalidate the organization of said district as to all other persons not appealing nor suing out such writs, nor shall such appeal or writ of error delay the work or proceedings so far as if affects the lands of such other persons. Nor shall it be a valid ground of objection on the part of any landowner upon said hearing, or upon an appeal from said judgment, or upon any writ of error attacking the said judgment, that any owner of other land has not received sufficient notice of the said proceedings, or that the said judgment is invalid as to the said owner of other lands. * * *

‘Sec. 23. Immediately after their appointment and qualification, the commissioners appointed for said district shall go upon the territory of said district and examine the lands therein and the channels of said Little Wabash river and the bayous, lagoons and other streams tributary thereto and determine upon and locate, design, lay out and plan such work as, in their judgment, is necessary for the improvement of the channel of said river or any of its said tributaries, for a better outlet and more free flow of the water, or protection from overflow, of said lands, for agricultural and...