Hutchins v. Vandalia Levee & Drainage Dist.

• Decision Date: 24 October 1905
• Citation: 217 Ill. 561,75 N.E. 354
• Court: Illinois Supreme Court
• Parties: HUTCHINS v. VANDALIA LEVEE & DRAINAGE DIST.

217 Ill. 561

75 N.E. 354

HUTCHINS

v.VANDALIA LEVEE & DRAINAGE DIST.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Fayette County Court; Joseph Story, Judge.

Petition for the organization of the Vandalia Levee & Drainage District and for the condemnation of land therefor. From a judgment confirming an assessment, Moses Hutchins, a property owner, appeals. Reversed.

Brown, Burnside & Bullington, for appellant.

John H. Webb and James M. Taylor, for appellee.

This is an appeal from a judgment of the county court of Fayette county, entered on the 24th day of June, 1904, ordering that the appellee district pay to the appellant, as and for his damages for lands taken for right of way for levee purposes, the sum of $334.50, and that the cost of the proceeding be taxed against said district, and further ordering and adjudging that the assessment roll be confirmed as to the benefits assessed against the lands of appellant in section 22, town 7 N, range 1 E of the third P. M., in said county, in accordance with the findings of the jury, and declaring the same to be a lien upon said lands, respectively, as assessed against the same, and ordering the clerk of said court to extend and spread the assessment so confirmed upon the records of the court, and that the payment of said assessment and the interest thereon should become due and payable at the time or times and in the manner provided by the court. The judgment was entered in a proceeding begun by the filing in said county court on March 11, 1903, of a petition praying for the organization of a special levee and drainage district by the name of the ‘Vandalia Levee and Drainage District in Fayette County in the State of Illinois,’ the boundaries thereof embracing the lands mentioned in the petition, and also praying for the appointment of commissioners in accordance with the provisions of the statute in such case made and provided, and for the execution and completion of the proposed work, and for such other and further order and decree in the premises as shall seem meet and the nature of the case may require. The proceeding is under the act of May 29, 1879 (Laws 1879, p. 120), as amended in 1885 (Laws 1885, p. 108), entitled ‘An act to provide for the construction, reparation, and protection of drains, ditches and levees across the lands of others for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts.’

The petitioners, describing themselves as the owners of lands in the proposed special levee and drainage district located in said county of Fayette, represent that they are each of lawful age and together constitute a majority of the owners of lawful age of the land within the special levee and drainage district described in the petition, and proposed to be organized into a special levee and drainage district, and that the owners signing the petition own in the aggregate more than one-third of all the lands contained within said proposed district; that said lands are rich and suited for agricultural purposes, if suitably leveed and protected from the annual overflows and suitably drained, but that the same are mostly low, wet, and subject to annual overflows and rendered nearly valueless for agricultural purposes, and producing malarial diseases and unhealthfulness therein, and over all the adjoining lands thereto; that it is necessary for agricultural and sanitary purposes that a levee or levees and drain or drains be constructed and maintained in and upon said proposed district on the lands described in the petition as embraced within the bounds of the proposed district, setting forth particularly a description of the lands embraced within the district. The petition further states that the lands within said bounds require a special combined system of levees and drainage for their protection and drainage from wash and overflow; that the petitioners desire that a special levee and drainage district may be organized, embracing the lands in the petition described, for the purpose of constructing, repairing, and maintaining all necessary and proper levees, embankments, grades, drains, and ditches within said district that may be found to be requisite to render said lands suitable and available at all times for agricultural and sanitary purposes, and to preserve and protect the same by special assessments upon the property therein and benefited thereby; that the levee proposed is to consist of an embankment of earth 4 feet wide on top, etc., the earth for the construction of said levee to be taken from the ground on the river side, or outside of the inclosure of said embankment; all timber, brush, logs, and débris, other than soil, clay, or gravel, to be removed from the ground to be occupied by said embankment, so that the same will be a solid and durable embankment 2 1/2 feet above the high-water mark of 1875; the district containing about 13,000 acres, the main ditch and lateral ditches to provide drainage for the waters of certain lakes and creeks. The petition further alleges that all the lands embraced within the boundaries of the proposed district are affected beneficially by the same, by protection from overflow and drainage in whole or in part, and that it is necessary to provide for an annual assessment upon the lands in the proposed district to pay for the necessary annual repairs and ordinary expenses in maintaining and preserving the improvements when made. The petition sets forth the names of the owners of land in the proposed district, together with their post office addresses and their respective interests in the tracts of land embraced within the district, etc.

On April 13, 1903, the court entered an order, finding that due notice had been given to all parties interested, that it had jurisdiction of the subject-matter and of the parties, that the petition was signed by a majority of the landowners owning more than one-third of the land within the proposed district, and that the proposed work was necessary and would be beneficial for agricultural and sanitary purposes to all the land in the proposed district, and appointing D. M. Clark, George F. Snerly, and William E. Ryan as commissioners ‘in and for the said proposed levee and drainage district according to the bounds thereof, who shall qualify and organize as provided by the statute, and proceed thereafter under the law and make report to this court in accordance with the provisions of the statute in detail.’ The commissioners qualified as required by law, entered upon the discharge of their duties, and made their report to the court, which was filed August 3, 1903. A number of objections were filed to the report, and by order entered on September 9, 1903, the report was referred back to the commissioners to correct the same and to report back to the court on September 18, 1903, on which latter day the objections were disposed of, and the court by its order declared the district duly organized. On the same day, to wit, September [217 Ill. 565]18, 1903, an order was entered by the court directing the commissioners ‘to make the assessment of damages or of damages and benefits, faithfully and impartially, to the best of their understanding and judgment, to which end they each shall respectively subscribe an oath and be sworn so to do, thence proceed to make such assessment, and upon completing the same they shall fix upon a day in this court for the correction of their assessment, and shall give at least ten days' notice of such time and place and the objects of such meeting by posting and publishing notices in the manner required by the statute under which this proceeding is had.’ The commissioners fixed upon February 23, 1904, as the date upon which objections should be filed.

The assessment roll was completed and filed on February 2, 1904. The report of the commissioners, making assessments for benefits and damages, recited that they had taken the oath, and examined the lands, and assessed to each tract damaged its proportionate share of the entire damage, and, if benefited, its share of such benefit, and carried the balance to the proper column and assessed to each tract benefited its proportionate share of the entire cost of such benefits. The assessment roll showed tracts belonging to the appellant in section 22 above described-one containing 28.50 acres, and assessment of the same at $3.35 per acre, a total assessment of the same of $95.48; showing land taken out of the same for levee or ditch to the amount of 3.90 acres, the value of the same at $25 per acre, making the total value of the amount taken, $97.50, and the net damage, $2.02; no net benefits. The assessment roll also showed another tract, belonging to the appellant in said section 22, containing 68 acres, assessed at $3.35 an acre, total assessment $227.80; land taken for levee or ditch, 2.50 acres, valued at $25 an acre; total value of land taken, $62.50; net benefits, $165.30, etc. The roll also showed another tract in said section of 80 acres belonging to appellant, assessed at $3.35 per acre; total assessment, $268; net benefits, $268. Also showing another tract in the same section of 6 acres, assessed at $3.35 an acre; total assessment, $20.10; land taken for levee or ditch 4.50 acres, valued at $25 per acre; total value of land taken, $112.50; net damages, $92.40. There were some other tracts mentioned in the roll belonging to appellant, but the assessment of benefits thereto seems not to have been objected to.

The appellant, by his attorneys, objected to the confirmation of the assessment against his lands as thus reported by the commissioners, and made the following specific objections: ‘First, that the commissioners heretofore appointed by this court to make assessments of benefits and damages have no right under the statute to make an assessment of benefits and damages, as directed by the order of this court; second, that the provision of the...