Union Drainage Dist. No. 5 v. Hamilton, 28571.

• Court: Supreme Court of Illinois
• Citation: 61 N.E.2d 343,390 Ill. 487
• Docket Number: No. 28571.,28571.
• Parties: UNION DRAINAGE DIST. NO. 5 v. HAMILTON.
• Decision Date: 23 May 1945

390 Ill. 487
61 N.E.2d 343

UNION DRAINAGE DIST. NO. 5
v.
HAMILTON.

No. 28571.

Supreme Court of Illinois.

May 23, 1945.

[61 N.E.2d 344]

Appeal from Kankakee County Court; C. D. Henry, Judge.

Proceeding by the Union Drainage District No. 5 against Edwin S. Hamilton asking for levy of drainage assessment. From a judgment of the county court confirming a drainage assessment against his lands, defendant appeals.

Affirmed.

Harry S. Streeter, Vernon G. Butz, and John H. Beckers, all of Kankakee, for appellant.

Eugene J. LaMarre and Dyer & Dyer all of Kankakee (Wayne H. Dyer, of Kankakee, of counsel), for appellee.

THOMPSON, Justice.

This is an appeal by Edwin S. Hamilton from a judgment of the county court of Kankakee county confirming a drainage assessment against his lands in said county.

The correct name of the district is ‘Bourbonnais Union Drainage District No. 5 of the towns of Bourbonnais and Kankakee, county of Kankakee and State of Illinois.’ It contains 1296 acres and was originally organized under the Farm Drainage Act about forty years ago, but was changed by a vote of the landowners May 1, 1941, into a levee and drainage district under the Levee Act. The system of drainage of the district since its organization has consisted of an open ditch and tile drain underneath, with an outlet into Soldier creek on the west, and a connecting line of tile to the east and south and thence to the northeast part of the district. The open ditch is located on the south side of the highway running east and west along the north side of the district. Appellant's lands are three adjoining eighty-acre tracts in the west end of the district, lying immediately south of the highway and ditch. In 1938, approximately $66,000 was expended by the drainage commissioners in repair work in the district. Of this sum, $56,000 was furnished by the W. P. A., and the remainder by the landowners in the district. The original tile was taken out and new tile laid. Appellant, who was oen of the drainage commissioners at the time this work was done, testified that the new tile was larger than the tile that was there before.

June 23, 1942, the commissioners filed their petition under section 37 of the Levee Act, Ill.Rev.Stat.1943, c. 42, s 37, asking for the levy of an assessment of $6500 for the purpose of repairing and re-laying a portion of the tile. The petition alleged that the tile between stations 48 and 84 had become partially blocked and silted to an extent, in some instances, of two thirds of the diameter of the tile, and that, in order to make the tile work at its maximum efficiency and afford adequate and sufficient drainage for the district, it was necessary that the same be taken up, cleaned and replaced at the proper grade. The prayer of the petition was for an order to levy an assessment therefor and to further levy an annual assessment for repairs. Afterward, on July 1, 1943, the commissioners filed a supplementary report of the engineer, dated June 30, 1943, recommending that the repairing and relaying of the tile, as proposed by the petition and the report attached thereto, be abandoned, and in lieu thereof a new tile line be constructed over a new location therein specified, at an estimated cost of $9,454.14. On November 6, 1943, another report of the engineer was filed, which was dated November 4, 1943, and designated as supplemental to his first report. In this report of November 4, he abandoned the construction of the new tile line as recommended in his report of June 30, 1943, and again recommended that the main tile between stations 48 and 84 be cleaned, repaired and re-laid, and in addition recommended that the open ditch from station 0 to station 62 be cleaned to the profile indicated on the plat attached. December 10, 1943, the commissioners filed their

[61 N.E.2d 345]

amended petition with the engineer's report of November 4, 1943, the estimate of cost, and the open ditch specifications. The prayer of the amended petition was that the court approve and confirm this last plan and order an assessment of $8,984.01, being the estimated cost of the proposed work, and also order an assessment of annual benefits to thereafter keep said work in repair.

To each report of the engineer and to both the original petition and the amended petition appellant filed answer and objections, all of which were substantially the same. He set up in each that the proposed work was neither necessary, feasible nor proper and would not adequately protect or drain the lands of the district. Upon a hearing before the court, appellant's objections were overruled and the court entered an order approving the amended petition and directing the commissioners to prepare and file an assessment roll to cover the cost of the work proposed and also to include therein a further assessment of annual benefits for thereafter keeping the work of the district in repair. The assessment roll was filed. Appellant made no objection to his assessment for annual benefits, but filed objections to his assessment for the proposed work on the ground that his lands are assessed more than they will be benefited by the work proposed and more than their proportionate share of the cost of the improvement. He filed objections on other grounds, which it appears he subsequently withdrew. There was a trial by a jury which viewed the land and the assessment roll was confirmed. This appeal is from the order confirming the assessment against appellant's lands and also from the order overruling his objections to the amended petition.

It is the contention of appellant that since it appears without contradiction that within three years from the laying of the tile in 1938, it was silted and filled in some places up to two thirds of its capacity, the approval of plans for re-laying said tile in the identical location where it will in a few years again become silted and filled up is an abuse of discretion by the trial court. It is the theory of appellant that the clogging of the tile resulted from the quicksand in which it was laid and that the county court's order of April 4, 1944, approving plans for similar work of similar inadequate and temporary character, should be reversed.

The engineer of the district testified that the sand between stations 48 and 84 was stable enough that there was no reason why the tile, if properly laid, would not be as permanent as any tile line constructed; that the present condition of the tile was due to its improper installation by the W. P. A.; that the tile had separated at its joints in some places to such an extent that a shovel...