Ritter v. Drainage Dist. No. 1 of Otoe and Johnson Counties

• Decision Date: 12 April 1940
• Docket Number: 30776.
• Parties: RITTER ET AL. v. DRAINAGE DIST. NO. 1 OF OTOE AND JOHNSON COUNTIES ET AL.
• Court: Nebraska Supreme Court

291 N.W. 718

137 Neb. 866

RITTER ET AL. v. DRAINAGE DIST. NO. 1 OF OTOE AND JOHNSON COUNTIES ET AL.

No. 30776.

Supreme Court of Nebraska.

April 12, 1940

Syllabus by the Court.

1. It is a duty of the board of supervisors of a drainage district organized under the legislative act of 1905 to repair ditches which become ineffective. Comp.St.1929, § 31-463.

2. The incorporation of a drainage district under the legislative act of 1905, the written promises in the charter or obligations of the landowners to pay assessments for drainage, the construction by the incorporated district of the drainage system pursuant to statute and the levy and payment of such assessments, create contracts between the district and the individual landowners. Comp.St.1929, § 31-401 et seq.

3. Where contractual and vested rights are created pursuant to statute, they cannot be destroyed by a subsequent act of the legislature.

4. " A legislative act will not be permitted, even if an attempt so to do is disclosed, to operate retrospectively where it will have the effect to invalidate or impair the obligation of contracts or interfere with vested rights." Travelers' Ins. Co. v. Ohler, 119 Neb. 121, 227 N.W. 449.

Appeal from District Court, Otoe County; Wilson, Judge.

Suit in equity by William J. Ritter, August Heinke, John Herman Arends, William D. Landwehr and all other parties similarly situated against Drainage District No. 1 of Otoe and Johnson Counties, Neb., and others for a mandatory injunction to require the defendants to repair portions of district's drainage system to prevent overflow of plaintiffs' land and destruction of their crops by water and to enjoin the defendants from holding an election to vote on the dissolution of the drainage district. From an adverse judgment, the plaintiffs appeal.

Judgment reversed, and cause remanded for further proceedings.

Spencer & Neumeister, of Nebraska City, for appellants.

Moran & James and Otto H. Wellensiek, all of Nebraska City, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER MESSMORE, and JOHNSEN, JJ.

ROSE Justice.

This is a suit in equity for a mandatory injunction requiring defendants, Drainage District Number 1 of Otoe and Johnson counties and the members of the board of district supervisors, to repair portions of its drainage system to prevent the overflow of plaintiffs' lands and the destruction of their crops by water. Plaintiffs seek also an injunction to prevent defendants, including the clerk of the district court of Otoe county, from holding an election to vote on the dissolution of the drainage district.

Plaintiffs are landowners who paid assessments for drainage which, through failure of the district to repair ditches, no longer protects their lands or crops from damages by water. Plaintiffs sue also for others similarly situated.

The drainage district was duly incorporated in 1910 pursuant to the drainage law of 1905 and amendments thereof. Laws 1905 ch. 161; Laws 1907, ch. 153; Laws 1909, ch. 150; Comp.St.1929, § 31-401 et seq. The statute of 1905 provides for the drainage of lands in the district and for protection thereof from the effects of water. The regularity and validity of the incorporation of the district under its charter were confirmed by the district court for Otoe county and by the Supreme Court. Drainage District v. Wilkins, 93 Neb. 567, 141 N.W. 151.

The charter provides that the corporation shall continue for 50 years and it therefore has 20 years to run unless sooner dissolved. The improvement district contained approximately 16,090 acres of land. The articles of incorporation named each landowner and described his tract. In the feasible, engineering project, the benefits to lands in the district were estimated at $566,050.66 and the cost of construction at $215,843.96. The ditches, dikes, drains and other improvements were made according to the plans adopted. Total benefits to the extent of 48 1/2 per cent. only were levied on the lands in the entire district. Plaintiffs paid the assessments levied against their lands.

Plaintiffs allege in their petition that improvements formerly benefiting their lands no longer serve the purposes of drainage; that dikes have been washed away and ditches filled up; that defendants refuse to make the necessary repairs; that they have on hand a fund of $800 which they threaten to use in calling and holding an election to dissolve the district pursuant to the act of 1933. Comp.St.Supp.1939, § 31-475.

That act provides for the dissolution of a drainage district organized under article 4, chapter 31, Compiled Statutes of 1929, and directs how the election shall be called and conducted. That there shall be no outstanding indebtedness of the district is a condition of dissolution by election. The act of 1933 is alleged to be void, if construed to operate retroactively and prevent the relief sought by plaintiffs. In different forms the sufficiency of the petition to state a cause of action was raised by demurrers.

The district court heard the cause on the demurrers, special and general, and held that the act authorizing the dissolution of the district by voters at an election was constitutional; that the petition does not disclose any outstanding indebtedness of the district; that plaintiffs have no contractual or vested rights to prevent the election to dissolve the district; that the petition does not state facts sufficient to constitute a cause of action; that a former temporary injunction was wrongfully granted; that the demurrers should be sustained; that the relief sought by plaintiffs should be denied. Plaintiffs appealed.

The rulings of the district court conform to the views of defendants and are defended as sound in elaborate arguments in which many cases are cited.

The position of plaintiffs is that the drainage act, the valid proceedings under it, the signing of the articles organizing the public corporation containing the promises and the obligations of the signers to pay assessments for drainage the duty of the district to make repairs for 50 years, the construction of the feasible drainage project and the...