In Re Yankton-Clay County Drainage Ditch

• Decision Date: 30 December 1916
• Docket Number: 3790
• Citation: 38 S.D. 168,160 N.W. 732
• Parties: In Re YANKTON-CLAY COUNTY DRAINAGE DITCH, C. M. Snow, Claimant and Appellant.
• Court: South Dakota Supreme Court

38 S.D. 168, 160 N.W. 732 (1916)

In Re YANKTON-CLAY COUNTY DRAINAGE DITCH, C. M. Snow Claimant and Appellant. South Dakota Supreme Court Appeal from Circuit Court, Clay County, SD Hon. Robert B. Tripp, Judge. #3790—Affirmed H. G. Tilton, Gunderson & Gunderson, Bogue & Bogue Attorneys for Appellant. Payne & Olson, French & Orvis Attorneys for Respondent. Opinion filed December 30, 1916. Rehearing denied March 5, 1917 (See 30 SD 79, 137 NW 608; 31 SD 496, 141 NW 393)

GATES, J.

After the decision of this court in Re Yankton-Clay County Drainage Ditch, 30 SD 79, 137 NW 60, and upon rehearing, 31 SD 496, 141 NW 393, the matter came before the joint boards of Yankton and Clay counties upon the assessment of damages. The appellant herein, C. M. Snow, claimant, presented a claim for $7,000 damages to the southwest quarter of section 15, township 92, range 52, as follows, which said land lies 80 rods south of the ditch as established:

"(1) Damage to said land in preventing the overflow waters from the Missouri and James rivers from passing off said lands, because of the embankments thrown up by the construction of said ditch and laterals, which will dam the waters back on said land, in the sum of $2,000. (2) Diminution of the value of the land by reason of the construction of said drainage ditch and laterals thereto, in the sum of $5,000."

The joint boards allowed his claim in full. An appeal was taken to the circuit court of Clay county, wherein said claim was wholly disallowed. From the judgment and an order denying a new trial, claimant appeals.

Broadly speaking, two-thirds of the drainage area of this ditch lies north of the ditch and one-third to the south. It is the theory of appellant that the ditch will be so constructed that the spoil banks will be thrown up on the south side of the ditch, which will prevent the overflow wasters from the Missouri and, the James rivers from emptying into the ditch, and thereby damage appellant more than he would be damaged by overflow if there were no ditch, because the overflow would be restricted to one-third of its natural area.

The learned trial court was of the opinion that it had no jurisdiction to allow damages to land not traversed by the ditch, basing its decision presumably upon the provisions of section 5, c. 134, Laws 1907, as amended by section 3, c. 102, Laws 1909, viz.:

"If they find the drainage proposed; or any variation thereof conducive to the public health, convenience or welfare or necessary or practicable for draining agricultural lands they shall establish the drainage and shall assess the damages sustained. by each tract of land or other property through which the same shall pass and the damages as compensation for the land taken for the route of such drainage."

On the other hand, the same section says:

"Any person interested may be heard in the matter of damages or compensation for land and the determination of the board of county commissioners shall be final unless appeal therefrom as provided in this act shall be taken."

And section 4, c. 134, Laws 1907, as amended by section 2, c. 102, Laws 1909, provides:

"Said notice shall summon all persons affected by the pro, posed drainage to appear at said hearing and show cause why the said drainage should not be established and constructed and shall summon ail persons deeming themselves damaged by the proposed drainage or claiming compensation for the lands proposed to be taken for the drainage to present their claims therefor at said hearing."

We are of the opinion that the restriction of damages to lands which the ditch traverses would violate Const. art. 6, §§ 2, 13, because such restriction might...