Chicago, B. & Q. R. v. Board of Sup'rs

AMIDON, District Judge.

This is a companion case to the one just decided between the same parties, 182 Fed. 291. That case involved an assessment of damages, while this one involves an assessment of benefits, arising from the construction of the drain.

There is evidence in the record tending to show that the two branches of appellant’s road embraced 8 miles lying within the drainage district." In the Kansas City branch there were two trestles, one 811. feet long, and the other 351 feet long. In the Keokuk & Western branch there were also two trestles, one being 590 feet long and the other 234 feet long. The remainder of the track was laid on an earth enbankment from 6 to 8 feet high. The floods occurring in the valley sometimes overflowed the roadbed, causing injury thereto and to the'trestles, and obstructing traffic-. The drainage board was of the opinion that the construction of the drain in question would largely obviate these injuries, and would likewise enable the railroad to substitute an earth fill for the greater part of the trestles. It assessed plaintiff’s benefits originally at $7,000, and afterwards increased the same by $2,333.33. The appellant denies that the benefits mentioned would result from the construction of the drain, and urges as its only ground of appeal that the assessment of benefits is excessive. The trial judge was of the opinion that the appellant would be benefited by the'’ cbfistrúctión of the .drain in at least' thé sum of $25,000, and .affirmed the assessment of benefits made by the board.

It is mapifest- that the results to be obtained by the construction of the drain'as a whole, as well as the benefits to accrue to the railroad company, lie largely in the realm of opinion. The assessment of benefits is. amply supported .by, the testimony of practical men and skillful engineers. There is no evidence in the record that would, justify a finding'that the board was actuated either by passion or fraud, or that it wds'misled as to any controlling matter of fact. In Shoemaker v. U. S., 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170, the Supreme Court declared that: “An appellate court will not interfere with the report of commissioners- in the-assessment of damages to correct the amounts reported, except in case of gross error showing prejudice, corruption, or plain .mistake.” This is the elementary rule approved by all courts"' and texfi-'writers: 'Lewis on Eminent Domain (3d Ed.) §§ 776 and 805. , The same rule should apply to the assessment of benefits'.' It is familiar doctrine that an • appellate court will not disturb the-finding of a master, approved by a trial- court, except in a very' plainjcase. - We can see no reason why- thé same rule, should not be applied in á casé like the present.

The'.decree-'is, affirmed.