Jenel v. Green Island Drain Co.

• Decision Date: 12 November 1881
• Citation: 12 Neb. 163,10 N.W. 547
• Parties: JENEL v. GREEN ISLAND DRAIN CO.
• Court: Nebraska Supreme Court

12 Neb. 163

10 N.W. 547

JENEL

v.GREEN ISLAND DRAIN CO.

Supreme Court of Nebraska.

Filed November 12, 1881.

Error from Cedar county.

B. B. Boyd and Marlow & Munger, for plaintiff.

Bryant & Gantt, for defendant.

MAXWELL, C. J.

The action was commenced in the district court of Cedar county, to enforce an alleged lien of the defendant upon certain lands of the plaintiff. A demurrer to the petition was overruled in the court below, and the plaintiff electing to stand upon his demurrer, judgment was rendered in favor of the defendant herein. The plaintiff brings the case into this court by petition in error.

The question to be determined is, was the demurrer properly overruled? The petition states, in substance, that the plaintiff (defendant in error) is a corporation organized under an act of the legislature, approved February 19, 1877, entitled “An act to authorize the construction of levees, dykes, and drains, and the reclamation of wet and overflowed lands, by incorporated companies;” that said corporation was organized for the purpose of constructing a drain from the Missouri river, in township 33, range 1, E.; thence south or south-west until the tract of land known as the lake or lakes, and lands contiguous thereto, and all lands likely to be benefited by said drain, be fully drained; that after said corporation was duly organized it made application to the county court of Cedar county for the appointment of appraisers, who were duly appointed, and after due notice made an assessment of the benefits to the lands to be affected by said ditch, and duly returned said assessment to the secretary of said corporation, and such assessment, with an affidavit attached thereto, was afterwards filed in the office of the county clerk of said county and duly recorded; that prior to the actual construction of said work, or any part thereof, surveys of the same were made, and the estimated cost did not exceed the aggregate of the assessments; that in April, 1878, an assessment of 10 per cent. upon the gross amount assessed upon the lands benefited was made and placed in the hands of the treasurer of said corporation for collection; that additional assessments, amounting to 20 per cent. upon the gross assessment, were afterwards made, and placed in the hands of said treasurer for collection; that Peter Jenel is the owner of the following described lands [giving description] affected by the construction of said drain, upon which there is now due the sum of $30.40, with interest; and praying that said lands may be appraised, advertised, and sold, and the money arising therefrom may be applied in payment of said sum, etc.

Section 1 of “An act to authorize the construction of levees, dykes, and drains, and the reclamation of wet and overflowed lands, by incorporated companies,” provides that “any number of persons not less than three, being owners of lands wet or liable to be overflowed, may organize a company for the purpose of draining, reclaiming, and protecting such lands, which shall have power to straighten, deepen, and make new channels for the whole or any part of a river or water-course, and to construct any dykes, drains, levees, and breakwaters, and to do everything which they shall deem proper to accomplish the purpose for which the company shall have been organized.” Sections 2, 3, and 4 provide the mode of organizing and electing officers, and filling vacancies in the office of director. Section 5 provides for the management of the...