O'Neill v. Leamer

• Decision Date: 17 May 1913
• Docket Number: 17,695
• Citation: 142 N.W. 112,93 Neb. 786
• Parties: HENRY W. O'NEILL ET AL., APPELLANTS, v. JACOB F. LEAMER ET AL., APPELLEES
• Court: Nebraska Supreme Court

142 N.W. 112

93 Neb. 786

HENRY W. O'NEILL ET AL., APPELLANTS, v. JACOB F. LEAMER ET AL., APPELLEES

No. 17,695

Supreme Court of Nebraska

May 17, 1913

APPEAL from the district court for Dakota county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

William V. Allen, M. D. Tyler and William L. Dowling, for appellants.

A. C Strong and R. E. Evans, contra.

SEDGWICK J. FAWCETT and HAMER, JJ., not sitting.

OPINION

SEDGWICK, J.

These defendants and other citizens of Dakota county applied to the district court for that county to organize a drainage district under the provisions of article IV, ch. 89, Comp. St. 1909. The court made the order organizing the district under the title "Drainage District No. 2 of Dakota County, Nebraska." Afterwards, these defendants were chosen as supervisors of the district, and began condemnation proceedings in the county court of Dakota county to obtain a right of way to their drainage canal across lands of these plaintiffs. The plaintiffs then began this action in the district court for Dakota county to enjoin the defendants from proceeding further to construct the ditch across the plaintiff's land. Upon trial, the court found in favor of the plaintiff Elizabeth Leahy, and against the plaintiffs O'Neill and Heffernan, and entered a decree dissolving the temporary injunction as to the last two named plaintiffs, and the plaintiffs O'Neill and Heffernan have appealed.

The pleadings are lengthy and involved, and, so far as we can see, contain considerable unnecessary and immaterial matter. A large number of questions are presented and discussed at length by the appellants, but we feel constrained to confine our discussion to the more important ones.

The plaintiffs contend that the drainage district was not regularly organized, and seem to insist that the proceedings were so defective that the court was without jurisdiction, and the district is not even a de facto corporation. The objections suggested, however, relate to supposed defects in serving of notice on some of the parties interested in the formation of the district, and other similar matters, none of which is of sufficient importance to affect the jurisdiction of the court or subject its judgment to this collateral attack.

The objection that the order incorporating the district was erroneous because some of the property included in the district was not sufficiently described might have been raised upon the hearing of the petition for the formation of the district, and upon appeal from the order, but cannot be insisted upon in this collateral proceeding.

Another contention of the plaintiffs is that, under our statute, a drainage district is not a public corporation, and that the attempt to give it the power of eminent domain is unconstitutional. The argument upon this point is interesting; but in view of the fact that this question has heretofore been fully considered by this court and determined adversely to the contention of the plaintiffs, and that the legislature has from time to time for many years past established and declared a public policy which is inconsistent with the view that these organizations are purely private corporations, and in view of the fact that other questions presented in this case are not so well settled and will require somewhat lengthy discussion, we do not consider it advisable to review the grounds of our former decision. Neal v. Vansickel, 72 Neb. 105, 100 N.W. 200; Barnes v. Minor, 80 Neb. 189, 114 N.W. 146; State v. Hanson, 80 Neb. 724, 115 N.W. 294; Drainage District No. 1 v. Richardson County, 86 Neb. 355, 365, 125 N.W. 796.

The plaintiffs contend that it is not within the power of the legislature to authorize a portion of the property owners in a proposed drainage district to force others in the district to consent to the incorporation and to "bear the burden and liability of such an organization." No authorities are cited upon this proposition, and we doubt whether any can be found. The same objection would apply to the organization of counties, townships, villages, and other similar subordinate public corporations.

It was also objected that there was no lawful attempt by the drainage district to agree with the plaintiffs as to a right of way over their lands before beginning the condemnation proceedings. One of the parties interested in this land testified that the attorney for the district offered $ 150 an acre for the land appropriated, and "I don't think I accepted it; I think I said I could not accept it. I don't remember what I said." It appears from the plaintiffs' petition and the evidence that the officers of the district were made to understand that these plaintiffs resisted the right of the district to purchase a right of way across the land. None of the parties interested testified that they were ready and willing to grant a right of way. The appraisers appointed by the...