People ex rel. White v. Underwood

Decision Date18 November 1953
Docket NumberNo. 32811,32811
Citation1 Ill.2d 620,116 N.E.2d 354
PartiesPEOPLE ex rel. WHITE et al. v. UNDERWOOD et al.
CourtIllinois Supreme Court

Scott Hoover, State's Atty., and Provine & Miley, Taylorville, for appellants.

Flesher & Taylor, Taylorville, for appellees.

BRISTOW, Justice.

This is a direct appeal from a judgment of the circuit court of Christian County dismissing a quo warranto proceeding which challenged the legality of the creation and organization of Drainage District No. 1 of the town of Johnson, Christian County, as a district by user, under section 76 of the Farm Drainage Act (Ill.Rev.Stat.1953, chap. 42, par. 161), and the authority of the individual defendants herein to hold the offices of commissioner and clerk of said district. A franchise being involved, the appeal is properly taken direct to this court.

On October 20, 1950, Perley B. Oller, D. W. Johnston, E. F. Harmon, Daisy Oller and Cleona J. Morris, owners of 300 acres in Johnson Township, filed with the town clerk a petition for organization of a drainage district by user, alleging that all of the lands proposed to be included in said district, embracing 820 acres, lay in one drainage basin, draining through the same outlet into a certain natural branch, and that said lands had been and were then connected by ditches forming a continuous line and branches which had been constructed and connected by mutual agreement and voluntary action of the owners of said lands; that the outlet and ditches needed restoring, repairing, improving, enlarging and cleaning out, which had not and could not be done by voluntary agreement, and praying that the lands described in said petition be organized into a drainage district for the purpose of accomplishing such work by special assessment. A plat was attached to such petition showing the land proposed to be organized and the alleged location in a freehand sketch of the old ditch which was the basis of the filing of the petition under the user statute.

A first meeting was held on said petition by the highway commissioner, Lawrence Underwood, after proper notice, at which all landowners concerned were present in person or by attorney except Cleona J. Morris. The commissioner filed minutes of such meeting and an order finding that the facts set forth in the petition were true and that the district should be organized. An adjourned meeting was held on November 25, 1950, and the highway commissioner filed minutes of such adjourned meeting and a report and recommendations of a civil engineer as to lands to be included and excluded, together with an estimate of costs and benefits. At such time the highway commissioner also filed an order organizing a drainage district as prayed, except that certain lands were excluded from the district as not being a proper part thereof. Said order also included construction plans which changed the alignment of the ditch so as to run along or parallel to section lines, east and west across certain land rather than along a public road, and an extension was added running north and south in the westerly part of the district. A classification list of benefits was also prepared.

On January 6, 1951, the State's Attorney of Christian County, on relation of appellants-relators, Goldie M. White, Opal Curran, Sophronia Johnson, Drusilla Johnson, Bertha K. MaHarry, and Marry K. Magner, landowners objecting to formation of said district, filed the quo warranto proceeding in circuit court. The defendants-appellees' answer and plea of justification denied the allegations of the complaint and cited the proceedings in the organization of the alleged district, attaching copies of the petition to organize, the order organizing the district, and all the minutes of the proceedings, alleging that such proceedings were pursuant to statute and that defendants lawfully held their offices of commissioner and clerk of the district. A motion to strike the answer and plea of justification, challenging the jurisdiction of the commissioner and sufficiency of the answer, were denied by the trial court. Thereafter, an amendment to the answer and plea of justification was filed, wherein the ownership of the lands in the proposed district prior to 1891 by predecessors in title of the present owners was generally alleged, and the location of artificial lateral drains connecting to the main ditch was specifically set forth.

The appellants-relators moved to strike the answer as amended, which was denied, and thereafter replied to the answer as amended, generally denying all the allegations therein. The reply was thereafter amended to add the affirmative defenses of limitations, abandonment, laches, nonuser and estoppel. A motion to strike the amended reply was denied, and, upon evidence heard at the trial, the trial court entered a judgment in favor of the defendants, dismissing the complaint in quo warranto.

At the trial, the original petition for organization of the drainage district and the proceedings thereon before the highway commissioner, including minutes of meetings and orders, were introduced in evidence, and in addition thereto numerous witnesses testified. From such evidence, it appears that the outlet of the drainage ditch here in question was a natural water course or draw about 12 or 15 feet deep and 40 or 50 feet wide, extending west from the south fork of the Sangamon River, across a road, and about two thirds of the way across 80 acres of land owned by Opal Curran, the west terminal of said draw being an undetermined distance north of the south line of the Curran land. From the west end of said natural draw or gulley, there is a ditch, apparently man made, about a foot deep and 20 to 30 feet wide, extending in a southwesterly direction across the Sophronia Johnson 80 acres to a point on the south line thereof, estimated to be from 100 to 300 feet east of the southwest corner of the Johnson 80. At this point there is a concrete culvert south across the road. Formerly there had been a wooden bridge at this point and at one time the ditch crossing the road was 15 or 20 feet wide and about 5 feet deep. A roadside ditch then runs westerly along the north side of the MaHarry 60 acres and the Perley Oller 80 acres, through a culvert under Perley Oller's lane, and then south through the center of the Perley Oller 80 acres to join a westerly ditch across said 80 acres. From the aforementioned roadside ditch, there is also an artificial ditch running south along the east side of the Perley Oller 80 acres to about the center thereof, and thence westerly across said 80 acres. There is a conflict in the testimony as to the exact course and ultimate terminus of this particular ditch after it leaves the Perley Oller 80 acres. The minutes of the original hearing on the petition before the highway commissioner, which were duly introduced into evidence, reflect statements by parties in interest that the lands of Goldie M. White are tiled into the open ditch and that the lands of Daisy Oller are tiled into the White tile. There was also evidence of man-made roadside ditches along the Magner and other lands in the district, which drained such lands and emptied into the main open ditch through a small ditch running through the lands of one D. W. Johnston. The plat of the proposed district and main ditch, which was introduced in evidence, indicates that the main ditch was along the north side of the Harmon 80 to the northeast corner of the Drusilla Johnson 80, from which it went in a northerly direction, thus giving drainage to both the Harmon and Drusilla Johnson 80s.

The plaintiffs-appellants assign as error the trial court's failure to find that the highway commissioner had no jurisdiction to organize a drainage district, pursuant to section 76 of the Farm Drainage Act, the trial court's holding that the drainage district was lawfully organized, and the trial court's refusal to enter judgment of ouster. However, the principal argument relied on by plaintiffs-appellants in support of their assignment of error is that there is no evidence whatsoever of lateral drains connecting the outlying areas of the district, owned by Goldie M. White, Opal Curran,...

To continue reading

Request your trial
6 cases
  • Western Nat. Bank of Cicero v. Village of Kildeer
    • United States
    • Illinois Supreme Court
    • 18 Mayo 1960
    ...and a stipulation of the facts and issues. We have jurisdiction on direct appeal since a franchise is involved. People ex rel. White v. Underwood, 1 Ill.2d 620, 116 N.E.2d 354. The stipulation established that petitioners are citizens, property owners, residents and taxpayers of the affecte......
  • People ex rel. First Nat. Bank of Chicago v. City of North Chicago
    • United States
    • United States Appellate Court of Illinois
    • 14 Junio 1977
    ...note, the only question to be determined in a quo warranto proceeding is the legality of the action. (People ex rel. White v. Underwood (1953), 1 Ill.2d 620, 116 N.E.2d 354.) There can be no justification for annexation absent statutory authority, and one requisite for a valid annexation is......
  • Hocking v. Hocking
    • United States
    • United States Appellate Court of Illinois
    • 23 Agosto 1979
    ...will be disturbed on review only if they are against the manifest weight of the evidence. Hanley v. Hanley; White v. Underwood, 1 Ill.2d 620, 116 N.E.2d 354; Dean v. Dean, 401 Ill. 406, 82 N.E.2d 342; Kane v. Johnson, 397 Ill. 112, 73 N.E.2d Upon reviewing this record, we cannot say that th......
  • Cline v. Cline
    • United States
    • United States Appellate Court of Illinois
    • 8 Octubre 1956
    ... ... Fornoff (Eugene H. White, Successor), Judge of the County ... Court of Wabash County, Illinois, ... unless clearly and palpably against the weight of the evidence, People ex rel. White v. Underwood, 1 Ill.2d 620, 627, 116 N.E.2d 354; Calcutt v ... ...
  • 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