State ex rel. Gantz v. Drainage District

• Decision Date: 19 December 1916
• Docket Number: 19646
• Parties: STATE, EX REL. WILLIAM GANTZ ET AL., APPELLANTS, v. DRAINAGE DISTRICT ET AL., APPELLEES
• Court: Nebraska Supreme Court

160 N.W. 997

100 Neb. 625

STATE, EX REL. WILLIAM GANTZ ET AL., APPELLANTS, v. DRAINAGE DISTRICT ET AL., APPELLEES

No. 19646

Supreme Court of Nebraska

December 19, 1916

APPEAL from the district court for Merrick county: FREDERICK W BUTTON, JUDGE. Reversed.

REVERSED.

Elmer E. Ross and Prince & Prince, for appellants.

H. M Morse and Martin & Bockes, contra.

OPINION

SEDGWICK, J.

A petition was filed with the board of supervisors of Merrick county for the formation of a drainage district in that county under the provisions of article V, ch. 19, Rev. St. 1913. The board of supervisors having acted upon the petition as the statute contemplates, an election was called, which resulted in favor of the formation of the district and the election of a board of directors, who duly qualified. The board of directors then caused plans and specifications to be made for the construction of the drainage ditches, and estimated that the cost thereof would be $ 16,698. Thereupon an election was called under section 1914, Rev. St. 1913, to determine the question of proceeding with the work and incurring the necessary expense thereof. The election was held, and it was declared by the canvassing board that the result of the election was in favor of proceeding with the proposed plan of drainage. Whereupon this action in quo warranto was brought in the district court for Merrick county against the drainage district and the directors thereof to require the directors to answer "by what authority or warrant they claim to proceed further in the premises in the prosecution of said enterprise," and for a judgment that the election so held "resulted in the defeat of said proposition." The prayer of the petition continued: "And that it be further adjudged by the court that the said board of directors have no further authority to proceed except to certify a tax levy to pay the necessary expenses incurred up to and including said election." The defendants filed a general demurrer to the petition, which was sustained, and the action dismissed, and the relator has appealed. It is contended that quo warranto is not the proper remedy in such case, and that section 1914 is unconstitutional and void.

1. The petition, after relating the facts above recited, alleges that the canvassing board of the election found that the total number of the votes cast was 9,132, and that 4,703 votes were in favor of proceeding with the proposed plan of drainage, and 4,429 votes were against so proceeding, and declared that the majority in favor of proceeding was 274. It was further alleged that 349 votes were cast in favor of the proposition as representing the number of acres of land in the right of way of the Union Pacific Railroad Company, that those votes were cast by the station agent at Clarks, and that he was not authorized to act for the railroad company in the premises, and that the total number of acres in the right of way of the railroad company, within said district, was not more than 150 acres, and that "all parties voting in favor of said proposition and having lands through which the right of way of said railroad company extended within said district, such party, or parties, voted the entire tract, or government subdivision, of land, and counted the acreage of the said right of way as the part of said subdivision, all of which they claimed to own, and cast such number of votes therefor as included the land therein owned by them and the said right of way; that approximately 100 votes were thus cast by said landowners in excess of the land actually owned by them, or in which they had any right, title, or interest entitling them to cast any vote or votes therefor, and were counted and included in the return favorable to said proposition." It it also alleged that 280 votes were cast in behalf of Merrick county as representing the number of acres of land claimed to be within the highways in said district and used for road purposes; that the party who cast such votes was not authorized, and that the "owners of the real estate in said district voted the full number of acres of land by them respectively held without any deductions for road purposes as they were of right authorized to do, and that the total number of acres in said district used for road purposes and not voted by the owners did not exceed 50 acres."

If these allegations were true, there was no majority of legal votes in favor of the proposition, and the proposition was not adopted by the voters. The statute provides: "Any corporation, public, private, or municipal, owning or having an easement in any land or lot, may vote at such election the same as an individual may." Rev. St. 1913, sec. 1872. The legislature took notice of the fact that the public highways and the right of way of transportation companies would be benefited by drainage. It was intended to make them responsible for their proportion of the expense of the improvement (Rev. St. 1913, sec. 1830), and to allow them a share with the individual landowners in such control as was given to interested parties. This purpose and the nature of these public interests affected must be considered in ascertaining the meaning of the language used by the legislature: "Any person may cast one vote on each proposition to be voted on for each acre of land or fraction thereof and for each platted lot which he may own or have an easement in, as shown by the official records of the county where the land or lots may be." Rev. St. 1913, sec. 1872. It was not intended by the use of the words "which he may own or have an easement in" to allow double representation of a part of the lands in the district. The ownership must be complete; that is, there must be title and the right of possession. The easement must be of the substantial nature of a railroad company's easement in its right of way, or of the public in the highways; that is, it must include possession under a record right. Therefore landowners...