People ex rel. Selby v. Dyer

• Decision Date: 16 December 1903
• Citation: 205 Ill. 575,69 N.E. 70
• Parties: PEOPLE ex rel. SELBY, County Treasurer, v. DYER.
• Court: Illinois Supreme Court

205 Ill. 575

69 N.E. 70

PEOPLE ex rel. SELBY, County Treasurer,

v.DYER.

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Moultrie County Court; E. D. Hutchinson, Judge.

Proceedings by the people for the collection of a drainage assessment against the land of Jasper Dyer, in which Dyer files objections. From a judgment sustaining the objections, the people appeal. Reversed.W. K. Whitfield, State's Atty., and Marion Watson, for drainage district.

Eden & Martin and A. W. Lux, for appellee.

CARTWRIGHT, J.

A petition to the commissioners of highways of the township of Lowe, in Moultrie county, signed by owners of lands in said township upon which ditches had been constructed by the voluntary action of such owners, was filed with the town clerk of said township, asking for the formation of a drainage district to include all the lands to be benefited by maintaining such ditches, in pursuance of the provisions of section 76 of the act to providefor drainage for agricultural and sanitary purposes, as amended by an act in force July 1, 1901 (Laws 1901, p. 157). The petition included only lands situated in the township of Lowe, and the town clerk notified the commissioners of its receipt, and proceeded under the provisions of said section in relation to the formation of a drainage district of the township. Upon examining the lands to be benefited by reason of the proposed improvement of the ditches, the commissioners of highways concluded that the lands of the appellee in the adjoining township of Lovington would be benefited; and they proceeded to organize Drainage District No. 5 by user of the township of Lowe, including the lands of appellee, situated in the adjoining township. They classified the lands and assessed the same for benefits. The assessment against the lands of appellee was unpaid, and the county collector applied to the county court for judgment. The appellee appeared and filed his objections that the drainage district was organized, includ lands in two townships, by the commissioners of highways of the township of Lowe without the co-operation of the commissioners of highways of the township of Lovington; that his lands were located in the township of Lovington; and that he never voluntarily connected his drainage with any ditch or ditches constructed by said drainage district. The court overruled a motion to strike the objections from the files, and, the parties having made an agreed statement of facts as above, the objections were sustained by the court, and judgment was refused.

Section 76, as amended in 1901, provides for the formation of a drainage district of a township by petition addressed to the commissioners of highways, where the owners of adjoining lands have by voluntary action constructed ditches which form a continuous line or lines and branches. The commissioners are required to examine the lands which will be benefited or damaged by reason of the improvement, and their proceedings are to be placed on the drainage records of the township, and the district is to be named and numbered. The section also provides for the formation of a district where the lands affected are in two or more townships, and in that case the petition must be filed in the office of the town clerk of each township, who shall give notice to the commissioners of highways of his township, and cause notice to be given to the owners of land situated therein. For such a district the commissioners of highwaus of the several townships are...