Walker v. Hughes

• Decision Date: 06 July 1932
• Docket Number: 5823
• Citation: 13 P.2d 249,52 Idaho 234
• Parties: C. A. WALKER, Appellant, v. E. V. HUGHES, S. P. HEMPHILL and BERT NOYEN, as Commissioners of Drainage District No. 5 of Benewah County, State of Idaho, and Their Successors in Interest, C. W. LEAF, as Clerk of the District Court and Ex-officio Auditor of Benewah County, State of Idaho, and IRA G. MURPHY, County Treasurer and Ex-officio Tax Collector of Benewah County, State of Idaho, Respondents
• Court: Idaho Supreme Court

13 P.2d 249

52 Idaho 234

C. A. WALKER, Appellant, v. E. V. HUGHES, S. P. HEMPHILL and BERT NOYEN, as Commissioners of Drainage District No. 5 of Benewah County, State of Idaho, and Their Successors in Interest, C. W. LEAF, as Clerk of the District Court and Ex-officio Auditor of Benewah County, State of Idaho, and IRA G. MURPHY, County Treasurer and Ex-officio Tax Collector of Benewah County, State of Idaho, Respondents

No. 5823

Supreme Court of Idaho

July 6, 1932

DRAINAGE DISTRICT-ASSESSMENT FOR IMPROVEMENTS-ESTOPPEL.

Owner of land in drainage district participating in expenditures for improvements was estopped to dispute irregularity or defects in proceedings.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. Bert A. Reed, Judge.

Action to cancel drainage district assessments. Judgment for defendants. Affirmed.

Judgment affirmed. Costs awarded to respondents.

Wm. D Keeton, for Appellant.

"A land owner who appears before the jury in a drain proceeding accepting the award made him, and entering into a contract to construct a portion of the drain, is not thereby estopped from contesting on the ground of irregularity, an assessment for the drain imposed upon land owned by him, where he had no notice of assessment until the roll was completed, and it was too late for him to appeal from the action of the drain commissioner." (Tinsman v. Monroe County, 90 Mich. 382, 51 N.W. 460; Tone v. Columbus, 39 Ohio St. 281, 48 Am. Rep. 438; Keese v. City of Denver, 10 Colo. 112, 15 P. 825.)

N.D. Wernette, for Respondents.

In the many cases decided upon municipal obligations for improvements, perhaps nothing is better settled than one who accepts the benefits must pay therefor. If there is one principle of law that is well settled, it is that the man who gets his property improved by another furnishing work and material therefor must pay for such improvements where he stands by and sees the improvements made. (Hemenway v. Craney, 36 Idaho 11, 208 P. 407.)

BUDGE, J. Lee, C. J., and Givens, Varian and Leeper, JJ., concur.

OPINION

BUDGE, J.

Appellant brought this action to enjoin the collection of and cancel certain assessments levied by Drainage District No. 5 of Benewah county upon the ground that the same had not been approved by the district court and were illegal and void. The principal defense pleaded and relied upon by respondents was estoppel. The cause was tried by the court, sitting without a jury. Findings of fact and conclusions of law were made and filed and judgment was entered in favor of respondents, from which judgment this appeal is taken.

Thirty-two assignments of error are specified by appellant, but he concedes that the same present but two questions, namely: (1) Is his land liable for expenditures in excess of those authorized by the district court, and (2) Is he estopped to question the legality of said assessments. Appellant has presented the case upon these two questions and we shall dispose of it in like manner.

The record discloses the following facts: Drainage District No. 5 of Benewah county was organized September 26, 1925, and included within its boundaries 240.43 acres, 68.93 acres of which have been owned by appellant since November 5, 1925. The remaining acreage is owned by fourteen individuals. Prior to the time the land within the district was drained all of such land, including that acquired by appellant, was low, swampy and marshy ground and practically valueless. Before the organization of the district an attempt had been made to drain these lands by placing a dike around the same, but the dike was never completed and at the time the work was undertaken by the district had washed out in a number of places and was valueless for the purpose intended. After and by reason of successful diking and draining by the district the land was converted into profitable agricultural land of the value of from $ 200 to $ 250 per acre. Prior to November 5, 1925, on which date appellant purchased his land, appellant went over the old dike and made a thorough investigation of the land he was considering purchasing, with particular reference to the physical condition thereof and the surrounding lands, the work and construction necessary to rebuild and complete the old dike and the cost thereof, also the necessity for and cost of an adequate pumping system and equipment to properly drain the lands within the district and make the same valuable for agricultural purposes, and also the probable cost of upkeep and maintenance of such project. Before the commencement of such construction appellant was informed and knew that the cost of reconstruction and rebuilding of the old dike, including incidentals, and costs of proceedings for organization of the district would be approximately $ 3,726.45, and that only $ 3,500 thereof would be available for work on the dike, and that no funds would be available for the purchase of pumping equipment. Appellant expressed himself as satisfied with the work to be done and the cost thereof and was willing to have it done and to pay his proportionate part and have his lands assessed therefor. Appellant resided at St. Maries, the county seat of Benewah county, a short distance from the lands in the district, and at all times had convenient access to the records of the district court and of the board of said district.

In December, 1925, the board of commissioners of the district presented and filed in the district court their report containing, among other things, an original assessment of benefits against the various tracts of land within the district, aggregating $ 3,726.45, that amount being estimated by said board in its report as the cost of the proposed work in the district. Also in said report the cost of upkeep and repairs was estimated at $ 500 per year. No report, other than that above referred to, has ever been submitted to the district court for confirmation. On January 7, 1926, the district court made its order confirming the report of the board and in such order found the estimated cost of proposed work to be $ 3,726.45 and that the cost of upkeep and repair after the work was completed would be approximately $ 500 per year. In said order the court approved the assessment-roll contained in said report and assessed the various tracts of land within the district at the rate of $ 15 per acre. The assessment against appellant's lands amounted to $ 1,033.95. Thereafter, pursuant to said order and by proper proceedings the assessment was duly entered upon the tax rolls of the county against the lands within the district. After the order of confirmation was made the land owners in the district agreed that instead of issuing bonds they would issue warrants to the amount necessary for said improvements and for the upkeep and repair thereof. On January 15, 1926 in order that the work could be done and paid for by warrants payable at the local banks, appellant and four other land owners in the district entered into a written agreement with the First National Bank and the Lumbermen's State Bank & Trust Company, both of St. Maries, whereby they agreed if said banks would cash the warrants of said district in a sum not exceeding $ 4,000 "for the purpose of raising, strengthening, repairing or altering the dike" in said district, that they would waive all question as to the illegality of the warrants; that $ 3 per acre might be levied against the land to take up outstanding warrants; that $ 3 per acre might be levied against the land for subsequent years for like purpose; that they would not contest such levies; that they would pay their proportionate part...