Hunt Drainage Dist. v. Harness

• Decision Date: 10 June 1925
• Docket Number: No. 16358.,16358.
• Citation: 317 Ill. 292,148 N.E. 44
• Parties: HUNT DRAINAGE DIST. v. HARNESS et al.
• Court: Illinois Supreme Court

317 Ill. 292

148 N.E. 44

HUNT DRAINAGE DIST.

v.HARNESS et al.

No. 16358.

Supreme Court of Illinois.

April 24, 1925.

Rehearing Denied June 10, 1925.

Action by the Hunt Drainage District against Richard Harness and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Appeal from Hancock County Court; Warren H. Orr, Judge.

Mack & Mack, Williams & Williams, Hartzell, Cavanagh, Martin & Hartzell, and Scofield & Bell, all of Carthage, for appellants.

Plantz & Lamet, of Warsaw, O'Harra, O'Harra & O'Harra, of Carthage, and Lyman Lacey, Jr., of Havana, for appellee.

FARMER, J.

Hunt drainage district, in Hancock county, was organized under the Levee Act (Smith-Hurd Rev. St. 1923, c. 42, § 1 et seq.) in 1879. It embraces 16,000 acres of land lying between the Mississippi river on the west and the bluffs on the east. Levees protect the district from overflow from the Mississippi river. Schuhart and Rocky Run creeks empty into the district at or near the foot of the bluffs. In April, 1923, the commissioners of the district filed in the county court of Hancock county a petition to condemn rights of way for the construction of diversion canals or ditches to carry the waters discharged into the district by Schuhart and Rocky Run creeks across lands lying outside the district. The owners of the lands sought to be condemned filed motions to dismiss the petition on the ground petitioners had no authority under the Constitution or statute to appropriate lands lying outside the district for the purposes mentioned in the petition, and also because it was not shown by the petition that there had been any lawful effort to agree with the landowners, or either of them, as to compensation for lands taken and damaged for the uses sought by petitioners. Answers were also filed, setting up substantially the same defense, and also denial that the diversion ditches were necessary for the reclamation of the lands in the district. Before a jury was impaneled the court heard evidence on the preliminary question of the right to condemn the lands, and entered an order that petitioners had that right, and the landowners were given time to, and did, file cross-petitions. A jury was then impaneled, and after hearing the evidence returned a verdict awarding compensation to the respective landowners for lands taken and damages to lands not taken. Motion for a new trial was overruled, and judgment rendered on the verdict, from which judgment this appeal is prosecuted by the landowners.

No error is assigned as to the adequacy of the compensation awarded. Some questions as to the regularity of the procedure are raised, but the principal contention of appellants is that appellee had no power to condemn appellants' lands which were outside the district, and that there was no necessity for taking the lands for the purposes that they were sought to be taken. The question here presented-the right of the district to condemn land for diversion purposes-has never been decided by this court.

[1][2][3][4] A drainage district is organized for a public purpose, and is a quasi municipal corporation, and possesses authority to exercise the powers necessary to carry out the purposes for which it is organized. The Constitution and statutes authorize a drainage district to raise funds to accomplish the objects for which it is organized, by special assessment, which is the power to tax, and a requisite of the power to tax is that the tax shall be for public purposes. A drainage district is therefore held to be a public corporation, and has the right to exercise the power of eminent domain for proper purposes. Havana Township Drainage District v. Kelsey, 120 Ill. 482, 11 N. E. 256;Elmore v. Drainage Comrs., 135 Ill. 269, 25 N. E. 1010,25 Am. St. Rep. 363;Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Polecat Drainage District, 213 Ill. 83, 72 N. E. 684;City of Joliet v. Spring Creek Drainage District, 222 Ill. 441, 78 N. E. 836;Hutchins v. Vandalia Drainage District, 217 Ill. 561, 75 N. E. 354;Smith v. Claussen Drainage District, 229 Ill. 155, 82 N. E. 278. It is well settled, as stated by Dillon in his work on Municipal Corporations, that in addition to the powers expressly granted them, such corporations may exercise such powers as are necessarily implied in or incident to the powers expressly granted. City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753. ‘A drainage district necessarily possesses the implied powers necessary to carry out the express powers granted.’ Spring Creek Drainage District v. Elgin, Joliet & Eastern Railway Co., 249 Ill. 260, 94 N. E. 529. Such corporations are expressly authorized by section 37 of the Levee Act to expend the money raised by the corporation ‘for the purpose of constructing or repairing or maintaining any ditch, ditches, drains, levee or levees within said district or outside of said district, necessary to the protection of the lands and complete drainage of the same within said districts,’ under the approval of the court.

Hosmer v. Hunt Drainage District, 134 Ill. 360, 26 N. E. 584, involved a second assessment made in an already organized district, a part of which was to be expended on work outside the district. The court held the statute authorized the expenditure on work outside the district, under the order and direction of the court. The same question was considered in Briggs & Frith v. Union Drainage District, 140 Ill. 53, 29 N. E. 721, and the court held the drainage commissioners had the power to use money raised by assessment against the lands in the district, under the direction of the court, on the construction of work outside the district, necessary for the protection and complete drainage of the lands of the district. That decision was approved in Binder v. Langhorst, 234 Ill. 583, 85 N. E. 400. In that case the court said:

‘The power of the commissioners, under the direction of the court, to construct any work necessary for the protection and ample drainage of the lands within the district, whether the work is to be done within or without the district, and to raise money by assessment for that purpose, is plainly given by the statute.’

The court also held the obligation and the power of the commissioners are the same under the Levee Act as under the Farm Drainage Act. Bay Bottoms Drainage District v. Cache River Drainage District, 295 Ill. 301, 129 N. E. 152, sustains the power of the commissioners to condemn lands outside the district for the complete drainage and reclamation of the lands in the district.

Appellants contend those cases go no further than to hold the commissioners may appropriate lands outside the district for outlet or similar purposes but do not authorize the construction of diversion canals upon the lands of others outside the district. It is conceded the statute authorizes the commissioners to appropriate lands outside the district for an outlet in the complete drainage of the district. The language of the statute does not restrict the power to appropriate lands outside the district to the providing of an outlet for draining the lands in the district. The commissioners are authorized to spend money raised by assessments against the lands in the district in the construction of work outside the district necessary to the protection and complete drainage of the lands within the district. The character of the work authorized is limited only to such work as may be necessary to completely protect and reclaim the lands in the district. Diversion canals outside the district, if necessary to the complete protection of the district, are as much authorized as the construction of outlet ditches outside of the district.

In the case of cities and villages, although no express authority is given them to appropriate lands outside the corporate limits for local improvements, we have held that under their necessarily or fairly implied powers they may, when necessary to secure an outlet, extend sewers beyond the city limits,and that, of course, carries with it the power to acquire the land necessary. Shreve v. Town of Cicero, 129 Ill. 226, 21 N. E. 815;Cochran v. Village of Park Ridge, 138 Ill. 295, 27 N. E. 939;Maywood Co. v. Village of Maywood, 140 Ill. 216, 29 N. E. 704;Callon v. City of Jacksonville, 147 Ill. 113, 35 N. E. 223;City of Rockford v. Mower, 259 Ill. 604, 102 N. E. 1032. In Carr v. City of Athens, 304 Ill. 212, 136 N. E. 633, the court held that when it is necessary for a municipality to go beyond its corporate limits to obtain a water supply for fire protection and for the use of its inhabitants, or procure an outlet for a sewer to protect the public health, or the establishment of a pest house, it has the power to do so. In that case the court sustained the power of the city of Athens to construct and pay for a transmission line beyond the city limits to convey electric current purchased by the city from a corporation manufacturing electricity. We deem it unnecessary to refer to cases in other states deciding the same way.

Counsel for appellants argue that a city or village has authority to exercise governmental powers and a drainage district has no such authority. Both kinds of corporations have the express and necessarily implied or incidental powers to carry out the purposes for which they are organized. The...