Gasaway v. North Branch Lake Fork Special Drainage Dist.

• Decision Date: 04 April 1930
• Docket Number: No. 20002.,20002.
• Citation: 170 N.E. 721,339 Ill. 103
• Parties: GASAWAY v. NORTH BRANCH LAKE FORK SPECIAL DRAINAGE DIST. et al.
• Court: Illinois Supreme Court

339 Ill. 103

170 N.E. 721

GASAWAY

v.NORTH BRANCH LAKE FORK SPECIAL DRAINAGE DIST. et al.

No. 20002.

Supreme Court of Illinois.

Feb. 21, 1930.

Rehearing Denied April 4, 1930.

Mandamus proceeding by Murtie Gasaway against the North Branch Lake Fork Special Drainage District and others. From a judgment awarding writ of mandamus, respondents appeal.

Affirmed.

Appeal from Circuit Court, Logan County; Frank Lindley, judge.

George J. Smith, of Clinton, and Peter Murphy, of Lincoln, for appellants.

Harold F. Trapp, of Lincoln, for appellee.

STONE, J.

This record presents an appeal from a judgment of the circuit court of Logan county awarding a writ of mandamus to appellee requiring appellants to build a bridge across a certain drainage ditch on lands owned by appellee. The cause comes here on an assignment of error attacking the validity of section 74 of the Farm Drainage Act of 1885 (Laws 1885, p. 106). The appellant drainage district was organized April 5, 1893, under the Farm Drainage Act of 1885, and is located in the counties of Logan, Macon, and De-Witt. Appellants answered the petition, denying the right of appellee to the relief sought and filed also a plea of the Statute of Limitations. Appellee replied to that plea, alleging a new promise within five years of filing the petition. Appellants filed a similiter to the traverse of the plea of the Statute of Limitations and a rejoinder as to the new promise alleged in the replication. Appellants also in their answer to the petition alleged that the amendment of 1927 (Laws 1927, p. 412), to section 74 of the Farm Drainage Act is unconstitutional. To this portion of the answer appellee filed exceptions, which were sustained. The cause was heard without a jury and the writ awarded.

There is no dispute as to the facts, and it is conceded that the record presents but one question here-that is, whether the amendment of 1927 to section 74 of the Farm Drainage Act of 1885 is unconstitutional.

The district comprises about 9,800 acres of land and has constructed a ditch about ten miles in length, with an average width at the top of thirty feet and an average depth of eight feet. Several lateral tile ditches are connected with this ditch. It appears from the record that at the time of the organization of the district and the digging of the ditch one Leonard K. Scroggin was the owner of the land now owned by appellee, and other lands in the district, the description which is as follows: The northeast quarter and the east one-half of the northwest quarter of section 13, in township 18 north, range 1 west of the third principal meridian, in Logan county, comprising 240 acres of land. A public highway extends along the north and east sides of this section. The ditch of the drainage district extended diagonally from the southwest to the northeast across the northeast quarter section of the land owned by Scroggin. There is a bridge in the public highway on the east side of Scroggin's land, and by it he was enabled to reach all parts of his 240 acres without crossing the ditch on his own land. On August 19, 1916, Scroggin died, and Angeline Rothwell, his daughter, mother of appellee, became the sole owner of the 240 acre tract. She died on March 18, 1921, leaving a will, by which she devised to appellee and to John Rothwell, her brother, the said tract of 240 acres as tenants in common. In 1922 appellee and Rothwell executed and delivered, each to the other, certain deeds, by which appellee became the sole owner of the south one-half of the 240 acres of land, and her brother, John Rothwell, became sole owner of the north one-half thereof. Appellee is therefore the owner of the south one-half of the northeast quarter, and the south one-half of the east one-half of the northwest quarter of said section 13. The lands lying west and south of appellee's land belong to other parties, so that her land is ‘an enclosed field or parcel of land’ within the meaning of the drainage act. It will be seen that she owns three tracts of 40 acres each, lying in a line west from the north and south highway bounding section 13 on the east side thereof. The ditch in question extends from the southwest corner to the northeast corner of her middle forty, and she has no means of going from one part of her land to the other without crossing the ditch or crossing property not owned by her.

Prior to 1919, section 74 of the Farm Drainage Act of 1885 provided that the drainage commissioners shall build and maintain from the district funds at least one bridge or proper passageway over each open drain where the same crosses any inclosed field or parcel of land, or may make a contract with the owner of such land to build and maintain such bridge or crossing. In 1919, section 74 was amended (Laws 1919, p. 451) to provide that the drainage district should not be liable for building, enlarging or replacing any farm or highway bridge across open drains of the district nor for the maintenance thereof, but the cost thereof, when occasioned by the work of the district, should be taken into consideration in determining the amount of damages to be allowed to the landowner and agreed upon or determined in the same way other damages were agreed upon or determined. In 1927, ...