Winkelmann v. Moredock & Ivy Landing Drainage Dist. No. 1

• Decision Date: 08 November 1897
• Citation: 48 N.E. 715,170 Ill. 37
• Court: Illinois Supreme Court
• Parties: WINKELMANN v. MOREDOCK & IVY LANDING DRAINAGE DIST. NO. 1.

170 Ill. 37

48 N.E. 715

WINKELMANN

v.MOREDOCK & IVY LANDING DRAINAGE DIST. NO. 1.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from Monroe county court.

Petition by the Moredock & Ivy Landing Drainage District No. 1, Monroe county, for an additional assessment upon the lands in the district. From a judgment ordering such assessment, William Winkelmann appeals. Reversed.

Joseph W. Rickert and Wm. Winkelmann, for appellant.

Travous & Warnock, for appellee.

This is an appeal from a judgment of the county court of Monroe county confirming an assessment roll made by the three commissioners of the Moredock & Ivy Landing Drainage District No. 1, in said county. The petitioners filed their petition in the county clerk's office of said county on the 15th day of August, 1895, alleging that said district was duly organized for drainage purposes, giving the boundaries thereof, and representing that the ditch theretofore dug in said district had been of great benefit to the lands therein, but that, by reason of the inability of the petitioners to collect a large portion of the assessments and repair taxes theretofore levied against the lands therein, they were unable to keep the ditches free from driftwood and dirt, so that the ditches became filled up and would not drain the lands; and further alleging that, in order to drain said lands, the boundaries of which are given in the petition, it will be necessary to do certain work and dig a certain ditch. The petition sets forth that, when the proposed work shall have been done, the ditches will drain the lands in the district. With the petition are filed a plat and profile, and an estimate of the cost of the proposed work, and an itemized statement of accounts, showing the moneys received and the manner in which such moneys have been expended. The petition further represents that on July 17, 1883, an assessment was made for drainage purposes against certain described lands, payable in installments in 1884, 1885, 1886, 1887, and 1888, and that repair taxes were regularly levied against said premises, payable in 1885, 1886, and 1888, and that certain amounts remained unpaid against said lands on account of said assessment, repair taxes, and interest. The petition alleges, as to some of the lands upon which assessments remained unpaid, that they were therein wrongly described by mistake. The petition further represents that there are outstanding liabilities of the district amounting to $25,840.59; that the commissioners have no funds to pay the same, except said taxes and assessments levied against said lands as aforesaid, amounting to $_____; that the owners of the delinquent lands claim that the taxes and assessments so levied against them are void by reason of mistakes in describing the same, want of proper notice to owners thereof, and other irregularities of proceeding not affecting the merits of said taxes and assessments; that by reason thereof the commissioners have been unable to collect any part of said taxes and assessments. The petition further represents that an assessment of $51,340.59 is necessary to be levied upon the lands described in the petition, and upon all the lands in said district, $25,500 of which is needed to complete said work, and $25,840.59 of which is needed to pay the outstanding liabilities of said district. The petition prays that the assessment may be made accordingly, and that in making the same said prior assessment against said delinquent lands be not lost to the district, but that the same may be considered and included in said assessment. The appellant and three others answered the petition, denying substantially all the allegations thereof. On December 12, 1895, the county court ordered that an additional assessment of $51,340.59 be levied upon the lands in said district, as prayed for in said petition, and that the descriptions of lands assessed, which were imperfect or inaccurate, be corrected, and that the assessment be made against the lands by proper descriptions. The appellant asked that a jury might be sworn to make the assessment; but it was ordered that the commissioners of the district make the assessment in lieu of a jury, and that the commissioners, in making the same, consider the prior assessments, which are void and unpaid as set forth in the petition, and that they may include the same or any part thereof with the assessment ordered. Thereupon the appellant filed objections to the confirmation of the assessment as to the lands therein described belonging to him. Such of these objections as are material to the case are mentioned in the opinion. The objections were heard by the county court, and evidence was introduced upon the issues formed. The court overruled the objections, and confirmed the assessment roll, as above stated.

MAGRUDER, J. (after stating the facts).

The former assessment, made on July 17, 1883, by the commissioners of the district, amounted to more than $41,000, and is the same assessment which is referred to and more particularly described in the cases of Gauen v. Drainage Dist., 131 Ill. 446, 23 N. E. 633, and People v. Rickert, 159 Ill. 496, 42 N. E. 884. No new assessment has been made since 1883, but a repair tax has been assessed since that time. The prior assessment of 1883 and the repair taxes together amount to $42,579.08. The record shows that, of the latter amount, $32,270.97 has been collected and expended, and that besides said amount $4,645.82 has been borrowed. Thus the total amount received is $36,916.79. It thus appears that $10,308.11 of the original assessment of 1883 remains uncollected. The present assessment, which is additional to the assessment of 1883, and amounts to $51,340.59, consists of two amounts, to wit: The sum of $25,500, which is alleged in the petition to be needed to complete said work, and the sum of $25,840.59, which is alleged in the petition to be needed...