In re Valley Center Drain Dist., Big Horn County
| Decision Date | 04 November 1922 |
| Docket Number | 5132. |
| Citation | 211 P. 218,64 Mont. 545 |
| Parties | IN RE VALLEY CENTER DRAIN DIST. BIG HORN COUNTY. v. EDER ET AL., DRAIN COM'RS. JOHNSTON |
| Court | Montana Supreme Court |
Appeal from District Court, Big Horn County; Robert C. Stong, Judge.
In the matter of the location and establishment of the Valley Center Drain District, Big Horn County, Mont. From an order directing C. S. Eder and others, as Drain Commissioners, to proceed with the work of constructing the system over the protest or remonstrance of J. W. Johnston, the remonstrant appeals. Affirmed.
Gwinn & Maddox, of Hardin, for appellant.
T. H Burke, of Hardin, for respondents.
On August 4, 1921, a petition in due form was presented to the district court of Big Horn county praying for the creation of the Valley Center drain district. An order was made designating September 1 as the time for hearing the petition, but at that time it appeared that all interested persons had not been served with notice, and the hearing was postponed until September 19 and further notice given. The hearing on September 19 resulted in an order establishing the district and appointing three commissioners to serve until the first Tuesday of July, 1923. The commissioners duly qualified, and on October 18 presented their preliminary report. On October 21 an order was made designating December 1 as the time for hearing the report, and notice was given as required by law. On November 25 J. W. Johnston, an owner of land within the district, but who had not signed the original petition, filed his protest or remonstrance against the report, setting forth specifically his objections. After the hearing on December 1 an order was entered which confirmed the report, fixed the boundaries of the district, and directed the commissioners to proceed with the work of constructing the drainage system. From that order this appeal is prosecuted.
Our first drainage statute was enacted in 1905. Chapter 106, Laws of 1905. It was amended in 1909 (chapter 144, Laws of 1909) and the amended act was superseded by a new act in 1915 (chapter 147, Laws of 1915). The act of 1915 was superseded by chapter 129, Laws of 1921, which is our present statute, comprised in sections 7265-7364, Revised Codes 1921. In very brief outline the statute provides for the following procedure: A petition complying with the requirements of section 7265 must be filed in the district court of the county where the lands to be drained, or some of them, are situated. An order fixing the time for hearing must be made and notice given as prescribed by section 7268. If service of the notice is not complete at the time designated, an adjournment may be taken (7272), and further notice of the adjourned hearing given (7273). Any interested person may contest the application (7275), and upon the hearing the court must determine the sufficiency of the petition and all questions raised by the contest, and shall dismiss (7279) or approve the petition. If the petition is approved, the court shall appoint three commissioners (7280) who shall take the oath and give the bond required by section 7281 and organize as required by section 7291. Thereafter, as soon as may be, the commissioners shall file a preliminary report and notice of the hearing thereon must be given (7293). Any interested person may present a remonstrance against the report (7295), and the issues thus raised shall be determined by the court without a jury (7297). For any of the reasons stated in section 7297 the court may dismiss the petition. However, if the court finds that the benefits will exceed the damages and costs, and that the public health or public welfare will be promoted by the proposed work, the report shall be confirmed and the commissioners directed to proceed (7298). After this report is confirmed, the commissioners shall cause surveys to be made and maps, plans, and specifications to be prepared, and shall ascertain and report to the court the various matters and things enumerated in sections 7304-7317, which shall include a statement of the special benefits accruing to or damages suffered by any lands and an apportionment of the cost to the lands according to benefits received. Notice of the time and place for hearing this report must be given (7316), and upon the hearing the court may enter an order confirming the report, and thereupon "the proposed work shall be established and authorized, and the proposed assessments approved" (7319). If the original assessments are insufficient, additional assessments may be made after notice and a hearing (7338). After the work is completed, the commissioners shall annually report to the court (7327), and before the report is approved notice must be given and a hearing had (7328). An opportunity is afforded to any landowner to present the claim that his lands are exempt from liability for the assessments, either original or additional (7340-7342). Section 7347 provides that the damages awarded to any landowner must be paid or tendered before the commissioners may go upon his land to prosecute the work, but this shall not prevent them going upon the land to do the preliminary work necessary to an assessment of benefits or an award of damages. Provision is made for bringing in other lands which receive benefits, but only after notice and a hearing (7349-7353). If additional lands are brought in, the commissioners shall assess against them "such sum as shall be just" and report their findings to the court (7354), which shall order a hearing after notice. Upon this hearing, if a jury is demanded, the court shall frame issues "on benefits and damages," and shall submit such issues to a jury (7355), and upon the findings shall confirm the report. An appeal may be taken to the Supreme Court from the order confirming the preliminary report of the commissioners (7299), from the order confirming the report making the assessment and awarding damages (7319), and from the order bringing into the district additional lands (7352). Section 7280 declares that "ownership of land within the district shall not disqualify a person from acting as a commissioner." The other provisions of the statute need not be reviewed.
Drainage statutes similar to ours and differing from it only in minor matters of procedure have been enacted in many states, and, speaking generally, have withstood every attack aimed at their constitutionality; at least, every objection urged against our act has been considered and overruled in numerous instances. So often and so thoroughly has the subject been treated that it would be an idle ceremony for this court to restate the reasons which underlie the decided cases, and we content ourselves with the bare statement of the conclusion upon each objection and with a citation of some of the leading authorities which sustain it.
1. That lands may be brought into a drainage district and subjected to the imposition of special assessments to defray the cost of constructing and maintaining the drainage system upon the theory that the use to which the lands are subjected is a public use, is not open to further discussion in this state. Billings Sugar Co. v. Fish, 40 Mont. 256, 106 P. 565, 26 L. R. A. (N. S.) 973, 20 Ann. Cas. 264.
2. In subjecting privately owned lands to this public use the state acts in virtue of its power of eminent domain. Summers v. Sullivan, 39 Mont. 42, 101 P. 166.
3. So long as ample provision is made for notice to every interested landowner and an opportunity for him to be heard before he may be affected adversely, it cannot be said that the statute operates to deprive him of his property without due process of law. Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 70 S.W. 721, 60 L. R. A. 190, 94 Am. St. Rep. 727; 9 R. C. L. 643.
4. The fact that this statute authorizes the commissioners to go upon a...
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