Kaw Valley Drainage Dist. of Wyandotte County, Kan. v. Metropolitan Water Co.

Citation186 F. 315
Decision Date24 February 1911
Docket Number3,566.
PartiesKAW VALLEY DRAINAGE DIST. OF WYANDOTTE COUNTY, KAN., et al. v. METROPOLITAN WATER CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

L. W Keplinger and C. W. Trickett, for appellants.

Willard P. Hall, Charles F. Hutchings, and O. L. Miller (Miller Buchan & Miller, Samuel Maher, and McCabe Moore, on the brief), for appellee.

Before HOOK and ADAMS, Circuit Judges, and WM. H. MUNGER, District judge.

WM. H MUNGER, District Judge.

The Legislature of the state of Kansas in 1905 authorized the formation of drainage districts in the several counties of the state by the board of county commissioners, upon the presentation to them of a proper petition, showing that the lands and property therein embraced are subject to injury and damage from the overflow of some natural water course, naming or describing it, and that the improvement of the channel or water course, the construction and maintenance of levees drains, or other works, are necessary to prevent such overflow, and that such improvement or work will be conducive to the public health, convenience, or welfare. Upon the organization of such district it was provided that the taxpayers residing within the district should elect a board of five directors, and said drainage district should be declared to be a body corporate with power to sue and be sued in its corporate name.

The statute provided, in substance, that the board of directors shall have power, whenever it shall be deemed necessary to appropriate any private property for use by the district in widening, deepening, or otherwise improving, any natural water course to prevent the overflow thereof, or for the construction of any levee, to cause a survey and description of the lands so required to be made by some competent engineer and filed with its secretary. The board was thereafter authorized to make an order declaring that the appropriation of such land was necessary, setting forth for what purpose the same was to be used. The board of directors, as soon as practicable thereafter, was required to present a written application to the judge of the district court or the court of common pleas of the county in which the land was situated, describing the land sought to be taken, setting forth the necessity for the appropriation thereof for the use of the district, and praying for the appointment of three commissioners to make appraisement and assessment of damages therefor. Upon the presentation of such petition by such board of directors, or its attorney, the judge to whom the same was presented was required forthwith in writing to appoint such commissioners, and deliver a certificate thereof to the said board of directors, or its attorney, who were required without delay to cause the application and certificate of appointment to be recorded in the office of the register of deeds of the county. The commissioners so appointed were required to take an oath to honestly and faithfully discharge their duties, and to give all owners of property sought to be taken at least 10 days' notice of the time and place when and where the damages would be assessed, such notice to be given by one publication in some newspaper published in the county, and at the time fixed in such notice the commissioners were required, upon actual view, to appraise the value of the lands taken and to assess the other damages done to the owners of the property, respectively, by such appropriation. The commissioners were authorized to adjourn from time to time as they deemed convenient, correct all errors or omissions in the giving of notice by serving new notices or making new publications, and were authorized to make from time to time partial reports, and upon completing their duties to make a final report. Such reports were to be in writing and filed in the office of the clerk of the county. In such reports the commissioners were required to accurately describe the land by them set forth and appropriated, the purpose for which the same was taken, the name of each owner, if known, and appraise each owner's interest and assess his damages separately. The county clerk was required, upon any such report being filed, forthwith to prepare and deposit a copy thereof in the office of the treasurer of the county, and, if the drainage district should pay to such treasurer the amount in full of such appraisement within 90 days of the time of filing such report, it was the duty of the treasurer to thereupon pay the same to the person or persons severally entitled thereto.

Any person being or claiming to be the owner of any lands so condemned or appropriated, deeming himself aggrieved by the award of said commissioners, could appeal from the award of said commissioners to the district court of the county; but such appeal should only affect the amount of compensation to be allowed and should not delay the prosecution of the work of the district, upon the district paying or depositing the amount assessed by such commissioners with the county treasurer, as aforesaid, and said district, upon executing a bond with sufficient surety to be approved by the county clerk to pay all damages or costs which said district might be adjudged to pay by said district court, was authorized, notwithstanding such appeal, to take possession of, appropriate, and use said land for the purposes for which it was condemned. Provision was also made in the statute allowing the drainage district, under certain circumstances, to appeal if desired from the award of such commissioners.

The Kaw Valley Drainage District, organized pursuant to the statute, on the 4th day of January, 1911, by its board of directors, presented its application to the judge of the district court of Wyandotte county, reciting the facts required by the statute to be recited in such application, praying for the appointment of commissioners to assess the damages to the owners of the property sought to be taken and damaged. On the following day, January 5th, respondent presented to the judge of the district court of Wyandotte county a petition and bond for the removal of such proceedings, instituted and taken by said drainage district for the appointment of commissioners, as aforesaid, to the Circuit Court of the United States for the District of Kansas; said petition and bond being in proper form and the security adequate. Such petition and bond were filed with the clerk of the district court of said Wyandotte county. The petition for removal was by the judge of said court denied, and the appellants Stumpf, Mason, and Mebus were by said judge appointed commissioners. The commissioners accepted the office, took the oath required by statute, and on the 6th day of January, 1911, caused a notice to be published, being such notice as was required by the statute, stating that they (the commissioners) would meet at 10 o'clock a.m., on the 19th day of January, 1911, at the east end of the James Street Bridge over the Kansas river, in Kansas City, Kan., and thereupon proceed, upon actual view, to condemn for the use of the drainage district the tracts of land described in the notice, and appraise the value of the land and assess the true damages done to the owners thereof.

Thereafter, and on the 13th day of January, 1911, plaintiff, having filed a transcript of the proceedings relating to the removal in the Circuit Court of the United States, filed its bill in the Circuit Court of the United States for the District of Kansas, setting forth the proceedings of said drainage district for the appointment of the commissioners, its application to remove said proceedings into the United States Court, that such proceedings were of a civil nature and properly removable to the Circuit Court of the United States, and praying for an injunction to restrain said drainage district and the commissioners so appointed from farther proceeding in said matter, for the reason that the entire proceeding was then pending in the Circuit Court of the United States, and such commissioners had no authority to thereafter proceed excepting by the order and direction of said Circuit Court. It was farther alleged that the said legislative enactment was unconstitutional and void, in that it deprived complainant of its lands without due process of law, in violation of the fourteenth amendment to the Constitution of the United States, in that it authorized, after the award of damages by the commissioners, the taking possession of the lands so appropriated by the drainage district to its own use, pending an appeal to the District Court. A temporary order of injunction was granted as prayed. From such order the drainage district has prosecuted this appeal.

The power of eminent domain is one which the state may exercise for any public purpose. Whether the purpose for which property is sought to be taken and used be a public one is undoubtedly the subject of judicial determination in a proper case. If the use be a public one, and it is here, whether the necessity for the taking exists is exclusively within the province of the Legislature of the state to say; such necessity may be determined by a direct legislative enactment, or its determination may be by the Legislature delegated to some officer or board. The question of the necessity is not necessarily one of a judicial character. Buckwalter v. School District, 65 Kan. 603, 70 P. 605; Boom Co. v. Patterson, 98 U.S. 403-406, 25 L.Ed. 206; Backus v. Fort Street Union Depot Co., 169 U.S. 557-568, 18 Sup.Ct. 445, 42 L.Ed. 853. It was said in the last-cited case:

'Neither can it be said that there is any fundamental right secured by the Constitution of the United States to have the questions of compensation and necessity both passed upon by one and the same jury. In many
...

To continue reading

Request your trial
15 cases
  • County of Allegheny v. Frank Mashuda Company
    • United States
    • U.S. Supreme Court
    • June 8, 1959
    ...Superior Copper Co., C.C., 25 F. 515; City of Chicago v. Hutchinson, C.C., 15 F. 129. Cf. Kaw Valley Drainage District of Wyandotte County, Kan. v. Metropolitan Water Co., 10 Cir., 186 F. 315; Fishblatt v. Atlantic City, C.C., 174 F. 196; Adams v. City of Woburn, C.C., 174 F. 192; Kansas Ci......
  • Hagerla v. Mississippi River Power Co.
    • United States
    • U.S. District Court — Southern District of Iowa
    • February 3, 1913
    ... ... The ... Keokuk & Hamilton Water Power Company, a corporation created ... under ... appealed to the district court of Lee county, Iowa, ... asking that the award be increased to ... question. Kaw Valley v. Metropolitan, 186 F. 315, ... 108 C.C.A. 393 ... ...
  • City of Tacoma v. Taxpayers of Tacoma
    • United States
    • Washington Supreme Court
    • February 7, 1957
    ...direct enactment or by delegating the power to some officer or board. Kaw Valley Drainage District of Wyandotte County, Kan. v. Metropolitan Water Co., 8 Cir., 186 F. 315.' (Last italics The state's prayer for an injunction to prevent the flooding of the public property within the proposed ......
  • United States v. Forbes
    • United States
    • U.S. District Court — Middle District of Alabama
    • June 25, 1919
    ... ... of War. Kaw Valley Drainage Dist. v. Metropolitan Water ... Co., ... probate of the county in which the lands are situated, and if ... the ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT