Gilseth v. Risty
| Decision Date | 03 April 1923 |
| Docket Number | 5163. [*] |
| Citation | 193 N.W. 132,46 S.D. 374 |
| Parties | GILSETH v. RISTY et al. (MINNEHAHA NAT. BANK OF SIOUX FALLS et al., Interveners). |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.
Action by Oluf O. Gilseth against A. G. Risty and others, as County Commissioners of Minnehaha County, and Albert A. Chenoweth and another, copartners, doing business under the firm name and style of Chenoweth & Rettinghouse, wherein the Minnehaha National Bank of Sioux Falls, S. D., and others, intervened. From judgment for defendants, plaintiff appeals. Judgment and order appealed from affirmed.
Bogue & Bogue, of Parker, and Parliman & Parliman, of Sioux Falls for appellant.
E. O Jones and Porter & Bartlett, all of Sioux Falls, for respondents.
During the year 1907 a drainage district, designated as drainage district No. 1, was established in Minnehaha county for the purpose of draining land along the Big Sioux river. Such district extended, from a point immediately north of the city of Sioux Falls, up the river for a distance of about 2 1/2 miles. The river through this district runs in a southerly direction until it reaches a point just north of the city of Sioux Falls. It then continues in a southerly direction through or along the western part of the city, then sweeps to the east around the southern portion of the city to a point just north of the northern limits of the city, where it winds away to the east and south.
In 1908, a petition was filed with the county commissioners, asking that said drainage district be extended several miles farther up the river. Such action was had upon this petition that (quoting from the findings of the trial court):
"Said petition was allowed, and a resolution adopted by the board of county commissioners, establishing said drainage and designating it as 'drain ditch No. 2,' extending said original drain ditch No. 1 from the upper end of said original drainage ditch No. 1 about 12 miles."
A drain ditch was constructed up the valley throughout the entire length of said district as so enlarged. At the point where the said drain ditch emptied into the river, the bluff or bank of the river is about 100 feet in height. To prevent the water from the ditch from washing away the river bank or bluff, a concrete trough or spillway had been constructed to carry the water down the hill into the river. During an unusual freshet that occurred in 1915 or 1916, the said spillway, either because of accident or faulty construction, was washed out and destroyed. At about the same time the river cut through its bank into the drainage ditch at a point several miles above the said spillway. This permitted the water from the river, as well as all the surface water that gathered in the ditch, to run down through the ditch over the said bluff, where the spillway had been, into the river. The water not only tore away a considerable tract of land along the river, and threatened to destroy a portion of the grounds of the state penitentiary, which is situated near that point, but also threatened to destroy the water supply of the city of Sioux Falls and to destroy the water power of the Northern States Power Company.
It was necessary to take immediate steps to control the flow of the water and to retain the water of the river within its natural channel where it flows through and around the city of Sioux Falls. After drainage ditches No. 1 and No. 2 had been constructed, other drain ditches had been constructed farther up the river. The result of the construction of these ditches was to greatly accelerate the flow of water down the valley, and to increase the quantity of water running through the ditches. Because of this increase in the volume of the water, the capacity of these ditches was no longer sufficient to dispose of the surplus water as they were originally intended to do.
Plaintiff in this action is the owner of agricultural land within the drainage area of drainage district No. 2. The increase in the flow of the water from father up the valley caused the overflow of plaintiff's land, from which substantial damage resulted. To obviate the continuation or recurrence of such damage, plaintiff and others similarly situated held a meeting on the 1st day of April, 1916, and took such action that on the 8th day of April, plaintiff and others who were affected by the condition of the water and of said drainage ditches filed a petition with the board of county commissioners, asking that said spillway be abandoned, and that the water flowing through said ditches be turned through a certain slough or lake in the northern part of the city of Sioux Falls, and thence into the channel of the river above where it flows around said city. A survey of said proposed plan was made, and, after notice to the interested parties, a hearing was had upon said petition and report of said survey. On the 8th day of July following, an order was made granting said petition. Thereafter many conferences were had by the plaintiff and the said petitioners and other interested parties, with the result that the said petition and the said plan of drainage were abandoned. Thereupon a second petition was filed, asking for the re-establishment of drainage ditch No. 1 and 2, for the reconstruction of said spillway and for the enlargement of the drainage area so as to include all the land along the river to the outlet of the said spillway. This petition was filed on the 3d day of August, 1916. The board of county commissioners thereupon caused a survey to be made of the entire area contemplated by the said last-mentioned petition. Upon the filing of the report of such survey, the board gave notice of hearing on the said petition, and upon such hearing the board, on the 3d day of October, 1916, made an order, purporting to establish a new drainage district, designated as "drainage ditch No. 1 and 2." This drainage district included the entire area of the two former districts, together with the drainage area along the river through the city of Sioux Falls. The board then proceeded to do the work necessary to carry out the plan contemplated by the said order. The ditches in what had been drainage districts Nos. 1 and 2, were cleaned out, widened, deepened, and diked so as to greately increase the carrying capacity thereof. Several cut-offs were made in the river so as to accelerate and increase the flow of water through the channel of the river. A new and larger spillway was constructed. The doing of all this work cost approximately $240,000. The board then proceeded to apportion the benefits for the purpose of levying an assessment to pay for said improvement. In order to ascertain the various tracts of land that had been benefited and that should be so assessed, the board employed surveyors to make a topographical survey of the entire area. While this survey was in progress, this action was commenced. Plaintiff seeks to restrain the completion of said survey and the apportionment of benefits, and also to permanently enjoin the making of an assessment to pay for said improvement. Findings and judgment were for defendants, and plaintiff appeals.
We do not understand that appellant questions the constitutionality of the law under which the said project was carried out. He claims that the requisite steps to give the board jurisdiction to proceed were not taken, and that, therefore, to permit the board to levy an assessment on his property to pay for said work would be depriving him of his property without due process of law. The filing of the petition, asking for the establishment of a new drainage ditch on the 3d of August, 1916, gave the board jurisdiction to proceed with the inspection and survey of the proposed drainage area as required by the provisions of Rev. Code 1919, §§ 8460, 8461; Lanning v. Palmer, 117 Mich. 529, 76 N.W. 2. Upon the filing of the surveyor's report, the board was authorized to fix a time and place for a hearing on said petition. This was done, and the notice provided for in section 8461 was given. The hearing was had as provided for in section 8462. Plaintiff, together with many other interested parties, was present at this hearing. The board, after a full hearing, found the drainage, as petitioned for in said petition, to be conducive to the public health, convenience, and welfare, and necessary and practical for the drainage of agricultural land. No appeal was taken from the order establishing the new district. Therefore the order became final, and there cannot, in our judgment, be any question of the board's jurisdiction to proceed to carry out the work contemplated by the petition.
It is contended by the appellant that the project contemplated by the petition was not the creation of a new drainage district or a new drainage ditch, but merely to repair a project already in operation, and that therefore the board was without authority to proceed. But this contention is not tenable. The Constitution (section 6, art. 21) and the statute (section 8458) gives the board the same authority to repair an old ditch that it does to construct a new one. But the two projects were by no means identical. The drainage district involved in this case contains a materially larger area than the combined area of the two old districts. Appellant was present when the order creating the new district was made. If he believed that such order was prejudicial to his rights, or was dissatisfied for any reason with the course pursued by the board, he should have appealed from said order, before the expense of executing the same had been incurred.
Numerous irregularities on the part of the board are alleged, and it may be assumed that the board did in certain instances proceed...
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