Nemaha Valley Drainage District v. Stocker

• Decision Date: 03 January 1912
• Docket Number: 16,625
• Citation: 134 N.W. 183,90 Neb. 507
• Parties: NEMAHA VALLEY DRAINAGE DISTRICT, APPELLEE, v. THOMAS B. STOCKER, APPELLANT
• Court: Nebraska Supreme Court

134 N.W. 183

90 Neb. 507

NEMAHA VALLEY DRAINAGE DISTRICT, APPELLEE, v. THOMAS B. STOCKER, APPELLANT

No. 16,625

Supreme Court of Nebraska

January 3, 1912

APPEAL from the district court for Nemaha county: JOHN B. RAPER JUDGE. Reversed.

REVERSED.

E. B Quackenbush, T. R. P. Stocker and Fred G. Hawxby, for appellant.

Kelligar & Ferneau, contra.

LETTON J. FAWCETT, J., not sitting.

OPINION

LETTON, J.

From an assessment upon the appellant's land to pay the cost of the improvement in Nemaha Valley Drainage District No. 2, of Nemaha county, this appeal was taken. Many of the errors assigned are disposed of by the opinion in Nemaha Valley Drainage District v. Marconnit, p. 514, post, and will not be again considered.

The channel of the main drainage ditch, as planned, crosses the appellant's land diagonally. A proposed lateral drainage ditch also crosses his land in much the same direction. Appellant filed specific objections before the board of supervisors to the engineer's report and to the proposed assessment. The percentage of assessment upon one tract was reduced from 100 to 50 per cent., but in other respects the report of the engineer was confirmed. The district court affirmed the action of the board.

The appellant contends that he cannot be assessed for that portion of his land included in the right of way taken by the drainage district for the purposes of the improvement. The evidence shows that the land proposed to be taken by the district according to the plan of the engineer amounts to 27.85 acres. It is clear that, if the land is taken from appellant by the construction of the ditch, he ought not to be compelled to pay for benefits to property of which he is deprived by the very act of construction. We think this was erroneous, and the appellant is entitled to be relieved from the assessment to the extent that it is based upon land actually appropriated by the district.

Another objection made by appellant is that he is wrongfully assessed for that portion of his land which is occupied by the old channel of the Nemaha river, for the reason that this land cannot be benefited by the improvement. The plat shows that the Nemaha river is a winding stream in its course along the boundary of a part of appellant's land. The evidence does not show whether the several tracts, according to the quantities of land marked on the plat and assessed to appellant, extend to the thread of the stream, but, even if they do, it is clear that it would be almost impracticable to separate the land covered by the tortuous course of the channel from the remainder of each of the respective tracts for the purpose of assessment. The benefits must be assessed as nearly as may be just under all the circumstances surrounding each tract. Exact nicety of apportionment as to each square yard or square rod is...