Wells v. West

• Decision Date: 04 December 1928
• Citation: 15 S.W.2d 531,228 Ky. 737
• Parties: WELLS v. WEST et al.
• Court: Kentucky Court of Appeals

15 S.W.2d 531

228 Ky. 737

WELLS v. WEST et al.

Court of Appeals of Kentucky

December 4, 1928

As Modified, on Denial of Rehearing, April 16, 1929.

Appeal from Circuit Court, Muhlenberg County.

Application by J. H. West and others to establish a drainage district wherein Mrs. R. A. Wells filed exceptions. Judgment overruling the exceptions, and the exceptor appeals. Affirmed.

Hubert Meredith, of Greenville, for appellant.

Belcher & Belcher, of Greenville, for appellees.

WILLIS J.

J. H West and 11 associates filed a petition in the Muhlenberg county court to establish a drainage district in the Long Creek valley. The procedure prescribed by statute (section 2380b1 et seq., Kentucky Statutes; Act March 26, 1918) was carefully pursued. Mrs. R. A. Wells, one of the landowners affected, filed exceptions, which were heard and overruled and the district was established. An appeal to the circuit court was taken, and another hearing had, which resulted in a like judgment. Mrs. Wells now appeals to this court insisting (1) that so much of section 2380b9 of the Kentucky Statutes as cuts down the defenses of landowners objecting to the establishment of a drainage district to a mere "denial of the facts stated in the petition and in the report of the viewers" violates the state and federal Constitutions; (2) that no district should be established which would impose upon landowners a confiscatory assessment, or excessive burden of taxation; (3) that the court erred in denying appellant's motion to dismiss the petition on the face of the papers; and (4) that error was committed by the trial court in excluding or disregarding evidence offered by the appellant. We will consider the contentions in the order stated.

1. The validity of drainage laws of the character here involved is no longer debatable. Carter v. Griffith, 179 Ky. 164, 200 S.W. 369; Head v. Amoskeag Mfg. Co., 113 U.S. 9, 5 S.Ct. 441, 28 L.Ed. 889; Otis Co. v. Ludlow Mfg. Co., 201 U.S. 151, 26 S.Ct. 353, 50 L.Ed. 705; Mittman v. Farmer, 162 Iowa 364, 142 N.W. 991, Ann.Cas. 1915C, 1 (annotation). But a special vice is thought to reside in the present Kentucky act from the fact that restrictions are placed upon the defenses that may be made to an original application for the establishment of a drainage district. It is proper for the Legislature to provide the procedure in such matters. It is distinctly a subject for the exercise of legislative power. Under our statute two distinct proceedings are contemplated, and should be kept separate throughout. The first proceeding is to establish the district, and it involves only a limited inquiry. It was meant to be kept within its scope, and an appeal to this court is allowed. The present appeal is on the preliminary proceeding, and involves nothing that may arise in the later one. The other step is for the arrangement and execution of the details needed to perfect the improvement after the district has been established. The meaning and character of the existing law is explained, and its validity sustained, in the case of Handley v. Graham, 187 Ky. 316, 219 S.W. 417, to which nothing need be superadded.

Reliance is rested upon the case of Maguiar v. Henry, 84 Ky. 1, 4 Am.St.Rep. 182. The action there reviewed was instituted to recover land that had been conveyed by the auditor to a purchaser at a tax sale. The statute involved undertook, in such actions, to cut off all defenses of the landowners except in five specified particulars. The act was held unconstitutional, because it forever denied defenses constituting vested rights. Clearly the case is not in point here. Neither property nor defenses are proposed to be taken from appellant. The present proceeding is only for the purpose of creating a drainage district within a fixed territory, to perform a definite public function in the future. In proceedings to determine the necessity or propriety of beginning the improvement, it is for the Legislature to say what steps shall be taken, and the terms on which and the extent to which resistance may be interposed. After a district is in being, and is proceeding to institute an improvement, other questions may arise; but at such time the owner of land may interpose his objections to any particular plan proposed, and the incidence of its operation as against his property. His constitutional rights are fully protected by permitting appropriate defenses to be made at the stage of the proceeding when the action comes in direct contact with his property rights. Due process of law is not denied, if sufficient notice is given and adequate opportunity afforded for defense. The procedure may be adapted to the exigencies of the case, if due process of law is not denied. Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616; Ballard v. Hunter, 204 U.S. 241, 27 S.Ct. 261, 51 L.Ed. 461; L. & N. R. R. Co. v. Schmidt, 177 U.S. 230, 20 S.Ct. 620, 44 L.Ed. 747; Wurts v. Hoagland, 114 U.S. 606, 5 S.Ct. 1086, 29 L.Ed. 229; Simon v. Craft, 182 U.S. 427, 21 S.Ct. 836, 45 L.Ed. 1165. We are satisfied, both upon principle and authority, that the act in question does not infringe either the state or national Constitution.

2. The next contention is that the proposed improvement would devolve upon the owners of land in the district an excessive burden of taxation, and result in practical confiscation of their property. Obviously the question thus broadly stated does not arise in the preliminary proceeding to establish the district. No tax is levied until that proceeding is finished. The amount or apportionment of it could not be determined until the engineering problems had been solved, and definite plans and specifications formulated. Further steps must necessarily follow. A definite and practical plan must be devised to meet the conditions confronting the district. The attack now made is leveled against a situation purely hypothetical. The actual one may be widely different in details, difficulties, and extent. It is impossible to say now with any degree of assurance what will be done after the district is created and enters upon the performance of its functions. When the next step under the statute is taken, the landowners affected are provided with opportunities to be heard on all questions and with the final right of appeal to this court. Indeed, when the improvement is nearer realization, objections to it may vanish. The case of Board of Drainage Commissioners v. Illinois Central Railroad Co., 202 Ky. 735, 261 S.W. 236, does not compel a contrary conclusion. In that case the court said:

"No errors of law are relied on for reversal. The only question made on the appeal is that the judgment of the court is not warranted by all the evidence."

The action of the lower court in that case was upheld on the ground that it constituted a finding of fact, which was not against the weight of the evidence. We have examined the record in that case, and find that no question of procedure was raised, suggested, or decided. The ultimate question on which the case turned was recognized by both parties as properly presented, and was decided by the court on the merits.

Appellees here quite properly followed the steps outlined by the statutes as construed by this court in Handley v. Graham, 187 Ky. 316, 219 S.W. 417. The court was not authorized to dismiss this action to establish a district, because of the apprehension of some that the district to be created might try to impose illegal or unreasonable burdens on their lands. It must be presumed that the board in control of the district will act within its authority. If it does not do so, ample remedy against any abuse of power is available. The district board is restrained by the very act of its creation, as well by the Constitution, from imposing excessive taxation or confiscatory burdens on the property intended to be benefited by the improvement.

But it is urged that exceptions allowed the landowner after the first proceeding is concluded and the second step is being taken are limited to a comparison of the reasonableness of the proposed assessment against his land with those against the other lands. The contention is wholly without basis and the landowner is not subject to any such restriction. After the report of the appraisers has been filed in the second proceeding, and the parties affected thereby properly notified, the statute provides:

"All persons who are shown by the report of the board of appraisers to own or control land or other property within or without said drainage, levee or reclamation district, which as shown by said report, will be assessed, benefited, injured or

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