State v. Risty
| Decision Date | 09 May 1927 |
| Docket Number | 6242 |
| Citation | 51 S.D. 336,213 N.W. 952 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff, v. A. G. RISTY et al, County Commissioners of Minnehaha County, Defendants. |
| Court | South Dakota Supreme Court |
A. G. RISTY et al, County Commissioners of Minnehaha County, Defendants. South Dakota Supreme Court Original Proceedings File No. 6242—Judgment for defendants Buell F. Jones, Attorney General Ray F. Drewry, Assistant Attorney General, Pierre, SD Attorneys for the State. E. O. Jones, N. B. Bartlett, Sioux Falls, SD Attorneys for Defendants. Opinion filed May 9, 1927
This is an original action brought by the state for the purpose of enjoining and restraining the defendants from apportioning benefits and levying assessments against the land of plaintiff for the construction of that certain improvement designated as drainage ditch No. 1 and 2 in Minnehaha county. The defendants Risty, Olsen, Even, Alguire, and Stringham are the members of the board of county commissioners of said county. Dale E. Howe is auditor, and McFarland is treasurer of said county.
The improvement involved in this case is the same that was involved in Gilseth v. Risty, 193 N.W. 132. Also, in Chicago, R. I. & P. Ry. Co. v. Risty (DC) 282 F. 364; Id. (CCA) 297 F. 710, and 46 SCt 236, 70 LEd 641.
The complaint purports to set out four separate causes of action. To this complaint defendants interposed a separate demurrer to each cause of action; each demurrer being based on the ground that the complaint does not state facts sufficient to constitute a cause of action.
In its first cause of action set out in the complaint, it is alleged that plaintiff, in its capacity as a sovereign state, is charged with the duty of maintaining a penitentiary for the detention and safekeeping of persons convicted of crime; that such penitentiary is located just north of the city of Sioux Falls; and that in connection with the said penitentiary plaintiff owns a large tract of agricultural land that is used and operated as a means of furnishing labor for the inmates of said penitentiary and for the production of food and supplies for said inmates.
It is further alleged that about the month of July, 1907, a petition was filed with the board of county Commissioners of Minnehaha county praying for the establishment of a drainage ditch, the outlet to which was to be in the Big Sioux river just to the north and east of the said penitentiary buildings, and which ditch was to be extended from sail outlet in a northwesterly direction for a distance of about 1 mile; then approximately due north for a distance of about 2 miles, and had one short lateral. Such proceedings were had by the board that a drainage district; designated as “drainage ditch No. 1,” was established. Said ditch had a bottom width of 40 feet and was constructed and completed at a cost of approximately $46,000. Before this ditch was fully completed a second petition was filed, praying for the establishment of a second ditch with its initiatory point in the upper end of ditch No. 1 and to extend north from said point for a distance of about 4 miles. Before action was taken on this petition another petition was filed asking that said ditch be extended north for a distance of about 12 miles. Pursuant to these two petitions, such action was had that a second drainage district, designated as “drainage ditch No. 2,” was established. This ditch was constructed. It had a bottom width of 40 feet and cost approximately 1,000.
Drainage ditch. No. 1 was paid for by apportioning the benefits and levying assessments against the lands benefited by the construction of such ditch. Drainage district No. 2, when established, included all of drainage district No. 1, and the cost thereof was paid by an apportionment and assessment against all the land, in both districts. As a part of the drainage project, a concrete trough or spillway was constructed near the penitentiary to convey the water from the entire drainage system down a drop of something like 100 feet into the Big Sioux river.
In the spring of 1916, an unusual freshet washed out and destroyed the said spillway, and the water commenced to cut away the hill and threatened to injure or destroy the penitentiary buildings, and otherwise damaged the property of the plaintiff. At about the same time the water in the river cut through its banks into the ditch at a point above plaintiff’s property. The result of this was to permit the whole river to run through the drainage ditch, over the hill at the penitentiary, and into the river below the city of Sioux Falls. This not only threatened to destroy the penitentiary buildings, but to destroy the water supply of the city and the water power at the falls. The county commissioners immediately placed dams in the ditch and turned the water of the river back into its natural channel through the city.
About this time a petition was filed with the board praying that drainage ditch No. 1 be permanently closed and that the water be turned into and through Covell Lake to the west of the city and from there back into the river. Such proceedings were had pursuant to said petition, that the board, on the 8th day of July, 1916, made an order permanently closing the outlet to drainage ditch No. 1, and establishing the Covell Lake outlet. No proceedings of any kind appear to have been taken pursuant to this order, and on the 3d day of August, 1916, a petition, signed by the city of Sioux Falls, F. L. Blackman, and others, was filed with the board setting forth, among other things:
“That drainage ditches Nos. 1 and 2, and the outlet thereto as constructed, were and are insufficient to accomplish the purpose for which they were constructed, and insufficient to properly drain the agricultural lands within the district or territory supposed to be drained thereby, and insufficient for the drainage of other agricultural lands between the mouth or outlet thereof and the land heretofore included within the assessment districts of said drainage ditches Nos. 1 and 2; that it is necessary for the drainage of agricultural lands within said drainage districts Nos. and 2, and also agricultural lands lying above the mouth of said spillway and between the mouth thereof and the present boundaries of said drainage ditches Nos. 1 and 2, to reconstruct, deepen, widen, and improve said drainage ditches Nos. 1 and 2, and to construct a new outlet or spillway thereto, and that in the reconstruction of the same, it will be necessary that the same be cleaned, deepened, and widened, and that certain levees, dikes, floodgates, and barriers thereto be constructed to such extent as might he necessary to carry off the surplus or flood waters and properly drain and protect the lands within said drainage districts and within the areas hereinbefore described; that to make the foregoing drainage system complete and adequate for the purpose for which it was designed, it will be necessary to straighten, clean out, and deepen the channel of the Big Sioux river at a number of places within the said drainage district; … that the lands and territory likely to be affected by the construction of the new spillway and the reconstruction and improvement of said drainage ditches, and which would be drained and benefited and protected thereby, include all the lands lying in the valley of the Big Sioux. river and included within the present boundaries of said drainage districts Nos. 1 and 2, as well as all of the lands in the valley of the Big Sioux river between the mouth of said spillway and the city of Dell Rapids, that are subject to overflow and will be subject to overflow by the waters of said river if the outlet to said ditches Nos. 1 and 2 be abandoned and said outlet closed, and that said drainage district should be so extended and enlarged as to include all lands and property benefited thereby as far down the valley of the Big Sioux river as the mouth of said outlet or spillway.”
Such proceedings were had pursuant to the petition that the board by resolution and order, on the 14th day of August, 1916, established the exact line and width of said ditch and fixed the time and place for hearing said petition, and gave notice thereof, and on October 3, 1916, established said ditch, the center line of which was the same as the center line of ditches Nos. 1 and 2, covering the same right of way and territory, and with a bottom width of approximately 90 feet, and named the same “drainage ditches Nos. 1 and 2.” This ditch, together with dikes and controlling works, was constructed. The river was canalized and straightened for a distance of about 6 miles, all at a cost of approximately $255,000.
A new topographical survey of all the territory, including lands below the original drainage district and above the outlet thereto, was had, and on the 10th day of June, 1921, the board adopted a new unit and fixed an apportionment of benefits to all the aforesaid lands and properties, including the property of the plaintiff above mentioned, and gave notice as provided by law for the equalization of the benefits to said lands and properties affected. Before the date set for the said hearing six suits were started in the federal court to enjoin the board from equalizing the tentative apportionments already made and from proceeding to make any apportionment or equalization, and upon which plaintiffs in said suits obtained a temporary restraining order. On the date set for the hearing of said equalization, namely, August 1, 1921, the board met pursuant to said notice, but neither plaintiff nor any other interested party appeared or filed any protest or objection to said apportionment. Thereupon the board adopted a resolution postponing the consideration of the apportionment of the benefits on drainage ditches Nos. 1 and 2 to August 22, 1921, at 2 o’clock p. m. of said day, which order and resolution of adjournment was passed from time to time to various dates and is still effective.
The restraining orders in the above-named suits in the federal court were made permanent as to...
To continue reading
Request your trial