Hollenbeck v. Detrick

• Decision Date: 28 March 1896
• Citation: 162 Ill. 388,44 N.E. 732
• Parties: HOLLENBECK v. DETRICK et al.
• Court: Illinois Supreme Court

162 Ill. 388

44 N.E. 732

HOLLENBECK

v.DETRICK et al.¹

Supreme Court of Illinois.

March 28, 1896.

Appeal from Lee county court; R. S. Farrand, Judge.

Petition by Martin Detrick and others for the dissolution of Nelson drainage district No. 1, Lee county, Ill. The petition was opposed by Edward J. Hollenbeck. There was judgment for the petitioners, and defendant appeals. Affirmed.J. F. Sanford, for appellant.

Dixon & Bethea, for appellees.

PHILLIPS, J.

This was a proceeding before the county court of Lee county on the 11th of August, 1894, for the dissolution of Nelson drainage district No. 1, in that county. This proceeding is authorized by section 1 of an act entitled ‘An act to provide for the dissolution of drainage district,’ approved June 4, 1889. By this section the district may be dissolved upon a hearing had upon a verified petition praying such dissolution, signed by not less than four-fifths of the adult landowners of such district, who own in the aggregate not less than three-fourths in area of the assessed land thereof, etc. On hearing in the county court it was held that notice had been given as provided by statute, and the indebtedness of the district paid, and costs of dissolution advanced, and dissolution was ordered. The petition for the organization of the district is in evidence, but the order for organization does not appear in the record. From the petition it appears the aggregate amount of land described in the petition is in area 1,882 1/2 acres. Of one tract of 80 acres, described in the petition, the owner's name is not given. One tract of 169 acres is stated to be owned by two tenants in common. The residue is owned in different tracts and titles by 14 persons as stated in the petition. Four different assessments are offered in evidence, one of July 12, 1881, wherein 1,812 acres of land, with tracts described as owned by 16 different landowners, are assessed. The record then shows certain proceedings wherein appears the verdict of a jury making the assessment of damage and benefits to lands within the district, and confirming the assessment, in which 1,812 acres of land belonging to 15 different landowners were ‘assessed, as was also an assessment on two different townships, for benefits to the highways of such townships.’ This assessment appears to have been made in 1885. In 1889 an assessment of damages and benefits seems to have been made, and the area assessed was 1,892 acres, belonging to 14 landowners. This is only shown by a verdict of a jury. The record further shows the impaneling of a jury in June, 1893, for assessment of benefits and advantages as well as damages to lands in said district, and the assessment shows 1,732 acres assessed, and all except 160 acres is owned by 12 different landowners; that 160 acres had in the three previous assessments been in the name of J. Terhune, and in this assessment stand in the name of four legatees of J. Terhune. The evidence shows conveyances by some of those named in the petition to others, who are assessed as the owners. The petition for the dissolution of the district does not describe any lands, but states the petitioners are four-fifths of the adult landowners of the district, and own not less than three-fourths in area of the land assessed; and opposite the name of each petitioner is the number of acres owned by him. From this it appears that the quantity owned by the petitioners is 1,450 acres, all but 160 acres being owned by 11 different persons, and that 160 borne in the first three assessments in the name of J. Terhune, and the petition is signed by four of her legatees. The petition and the last three assessments show the land by description of its numbers; the first assessment does not. The assessment, as made on the land, where described, omits certain names as owners, and states other owners. In any view of the case, the quantity of the land owned by the petitioners is in excess of three-fourths in area of the highest quantity assessed. The petition, as drawn, and the manner of the trial, is exceedingly unsatisfactory, but from a careful consideration of the record we hold it sufficiently appears that four-fifths of the adult owners of land assessed signed the petition. The objection that the court had not jurisdiction cannot be sustained.

Appellant next urges the act authorizing the dissolution of a drainage district is unconstitutional. By the provisions of section 31 of article 4 of the constitution it is provided the general assembly may pass laws permitting the owners of lands to construct drains, etc., across the lands of others, and provide for the organization of districts, etc. This provision is not self-operative, nor is it mandatory. The right to take lands to be used for a ditch results only after making compensation in damages for such use, and in contemplation of law such damages include all loss or injury to the one whose land is so taken for such purpose. In the exercise of that right there is none of the elements of a contract, although the amount of damages may be determined by agreement. Neither is the corporation one of a private character. It is created by a public act, for...