Zigler v. Menges

• Decision Date: 19 November 1889
• Docket Number: 13,866
• Citation: 22 N.E. 782,121 Ind. 99
• Parties: Zigler v. Menges et al
• Court: Indiana Supreme Court

22 N.E. 782

121 Ind. 99

Zigler v. Menges et al

No. 13,866

Supreme Court of Indiana

November 19, 1889

From the Elkhart Circuit Court.

Judgment reversed.

J. H Baker, J. H. Defrees, Jr., and H. C. Dodge, for appellant.

H. D Wilson and W. J. Davis, for appellees.

Elliott C. J. Mitchell, J., did not participate in the decision of this case.

OPINION

Elliott, C. J.

The appellee petitioned for the construction of a ditch, and the appellant remonstrated against it. A special verdict was returned, of which this is the substance: The lands along the entire line of the proposed ditch, except for a distance of three hundred feet at the lower end, are wet and marshy. The natural trend of the land through which the ditch will run is such as to cause the surface water, when unobstructed, to flow from a southeast direction north and west, in the general direction of the ditch. Before the Lake Shore and Michigan Railroad was built, which was about the year 1852, the surface water from the lands along the line of the ditch, as well as the lands further south and east, flowed to a point near the terminus of the ditch and there accumulated. The sub-soil at that point is of such a nature that the water sinks away in two weeks' time. In building the railroad the earth was thrown up on either side and an embankment was constructed on which the track was laid; on either side of this embankment an excavation was dug, and these excavations are from two to four feet lower than the adjoining land. After the construction of the railroad the surface water from the lands of the petitioners and of the remonstrant, as well as from other lands, continued to flow in the direction and along and near the south line of the proposed ditch, and accumulated in the ditches or excavations along the railroad embankment, where it sank away in the ground. For many years before the petition for the ditch was filed, an old ditch existed along nearly the entire line of the proposed ditch, and into this old ditch the water from the surrounding lands flowed and was conducted to the excavations along the railroad embankment. The line of the proposed ditch is the only natural or artificial practical water-way for the flow of the water from adjoining lands, and there is no other practical outlet for such water except the excavations along the side of the embankment constructed by the railroad company. The proposed ditch will be of public utility, it will be conducive to the public health, convenience and welfare, and the proposed route is practicable. It has not a sufficient outlet in case of a freshet. Six acres of appellant's land will be benefited to the amount of twenty-four dollars. The benefit to the lands consists in making them dryer and better adapted to cultivation. The land of appellant, lying north of the railroad, will be damaged in the sum of one hundred dollars. The verdict also states that the lands of other persons named will be benefited, but we think it unnecessary to give names and details.

We are satisfied that facts are found which enable the court to adjudge that the proposed ditch will be conducive to the public health, convenience and welfare, and that it will be of public utility. Laying out of consideration the general statements of the jury, we think facts appear which justify the conclusion the verdict declares. The reclamation of wet lands and the draining of marshes and ponds is of public utility and is conducive to public welfare, health and convenience. Anderson v. Kerns Draining Co., 14 Ind. 199; O'Reiley v. Kankakee, etc., Co., 32 Ind. 169; Seely v. Sebastian, 4 Ore. 25; Coster v. Tide Water Co., 18 N.J. Eq. 54, 66; Springfield v. Gay, 12 Allen, 612; Wright v. Boston, 9 Cush. 233; Hagar v. Reclamation Dist., 111 U.S. 701, 28 L.Ed. 569, 4 S.Ct. 663. As said in Ross v. Davis, 97 Ind. 79: "It is not necessary, in order that the use may be regarded as public, that the whole community or any large portion of it may participate in it. If the drain be of public benefit the fact that some individuals may be specially benefited above others affected by it, will not deprive it of its public character." The community is benefited by anything that makes considerable bodies of land arable and adds to their taxable value, and so it is by anything that lessens disease. The Legislature has declared that the drainage of wet lands is a matter of public benefit and it has left to the local tribunals nothing more than the duty of determining whether a particular ditch will be of public utility or will be conducive to the public health, welfare and convenience. If the particular ditch will drain any considerable body of wet lands it is of public utility and benefit. Coster v. Tide Water Co., supra; O'Reiley v. Kankakee, etc., Co., supra. Judge Cooley says: "Where any considerable tract of land, owned by different persons, is in a condition precluding cultivation, by reason of excessive moisture which drains would relieve, it may well be said that the public have such an interest in the improvement, and the consequent advancement of the general interest of the locality, as will justify the levy of assessments upon the owners for drainage purposes. Such a case would seem to stand upon the same solid ground with assessments for levee purposes, which have for their object to protect lands from falling into a like condition of uselessness." Cooley Taxation (2d ed.), 617.

Our own cases, already cited, refer the authority to direct the drainage of wet lands to the police power of the State, and in so far as the drainage does promote the health, comfort and convenience of the public, it is by virtue of this great power that the authority is exercised. The police power, it has been said, is "that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." Lake View v. Rose Hill Cemetery Co., 70 Ill. 191 (22 Am. Rep. 71). "All laws," says another court, "for the protection of the lives, limbs, health and quiet of persons, and the security of all property within the State, fall within this general power of the government." State v. Noyes, 47 Me. 189. By our own and many other courts this doctrine has been affirmed. Hockett v. State, 105 Ind. 250 (55 Am. Rep. 201, 5 N.E. 178); Eastman v. State, 109 Ind. 278, 10 N.E. 97; Wilkins v. State, 113 Ind. 514, 16 N.E. 192; Slaughter-House Cases, 83 U.S. 36, 16 Wall. 36, 21 L.Ed. 394; Civil Rights Cases, 109 U.S. 3, 27 L.Ed. 835, 3 S.Ct. 18; Smith v. Alabama, 124 U.S. 465, 31 L.Ed. 508, 8 S.Ct. 564; Nashville, etc., R. W. Co. v. Alabama, 128 U.S. 96, 32 L.Ed. 352, 9 S.Ct. 28. The removal of causes that produce disease and serious discomfort does promote the health and welfare of the public, and in enacting a law providing for the removal of such causes no provision of the Constitution is violated in compelling private persons who receive a special benefit to bear the expense; on the contrary, in enacting such laws a high constitutional duty is discharged, and no private rights are invaded where special benefits accrue, although the expense is imposed upon the property of the citizens. In speaking of the police power, Judge Cooley says: "Laws imposing on the owners the duty of draining large tracts of land which in their natural condition are unproductive, and are a source of danger to health, may be enacted under the same power, though in general the taxing power is employed for the purpose; and sometimes land is appropriated under the eminent domain." Cooley Const. Lim. (5th ed.) 734. A clear and vigorous statement of the law upon this subject is found in the case of Donnelly v. Decker, 58 Wis. 461, 17 N.W. 389: "It would seem to be most reasonable," said the court in that case, "that the owner of the lands drained and reclaimed should be assessed to the full extent, at least, of his special benefits, for he has received an exact equivalent and a full pecuniary consideration therefor, and for that which is in excess of such benefits, should be paid on the ground that it was his duty to remove such an obvious cause of malarial disease and prevent a public nuisance. The duty of one owner of such lands is the duty of all, and in order to effectually enter upon and carry out any feasible system of drainage through the infected district, all such owners may be properly grouped together to bear the general assessment for the entire cost proportionably. Assessment in similar cases is not taxation." Mr. Tiedeman, in speaking of legislation compelling private property to bear the expense of drainage, says: "The constitutionality of such legislation has, as a reasonable exercise of the police power of the State, been generally sustained, on the general ground that the State may impose upon the owner the duty of draining his low lands, in consideration of the consequent increase in the value of his lands." Tiedeman Lim. of Police Power, 445.

As the drainage act is constitutional, because a valid exercise of the police power, and as the exercise of that power in itself implies that the purpose for which an assessment is directed is for the public good, the purpose is necessarily a public one. As the purpose is necessarily public in all cases where health, comfort and convenience are promoted, there can remain in such cases no other questions than such as relate to the procedure and the amount of the benefits or damages assessed. Ford v. Ford, 110 Ind. 89, 10 N.E. 648 (93). Wherever the reclamation or drainage of wet lands will promote health there is a constitutional warrant for levying assessments to pay the expense of the drainage of such lands, and, from the very fact that it will accomplish this result, assessments may be authorized without...