O'Neill v. Leamer

Sedgwick. J.

These defendants and other citizens of Dakota county applied to the district court for that county to organize a drainage district under the provisions of article IV, ch. 89, Comp. St. 1909. The court made the order organizing the district under the title “Drainage District No. 2 of Dakota County, Nebraska.” Afterwards, these-defendants were chosen as supervisors of the district, and began condemnation proceedings in the county court of Dakota county to obtain a right of way to their drainage canal across lands of these plaintiff's. The plaintiffs then began this action in the district court for Dakota county to enjoin the defendants from proceeding further to construct the ditch across the plhintiff’s land. Upon trial, the court found in favor of the plaintiff Elizabeth Leahy, and against the plaintiffs O’Neill and Heffernan, and entered a decree dissolving the temporary injunction as to the last two named plaintiffs, and the plaintiffs O’Neill and Heffernan have appealed.

The pleadings are lengthy and involved, and, so far as we can see, contain considerable unnecessary and immaterial matter. A large number of questions are presented and discussed at length by the appellants, but we feel constrained to confine our discussion to the more important ones.

The plaintiffs contend that the drainage district was not regularly organized, and secan to insist that the proceedings were so defective that the court was without jurisdiction,'and the district is not even a de, facto corporation. The objections suggested, however, relate to supposed defects in serving of notice on some of the parties interested in the formation of the district, and other similar matters, none of which is of sufficient importance to affect the jurisdiction of the court or subject its judgment to this collateral attack.

The objection that the order incorporating the district was erroneous because some of the property included in the district was not sufficiently described might have been raised upon the hearing of the petition for the formation of the district, and upon appeal from the order, but cannot be. insisted upon in this collateral proceeding.

Another contention of the plaintiffs is that, under our statute, a drainage district is not a public corporation, and that the attempt to give it the power of eminent domain is unconstitutional. The argument upon this point is interesting; but in view of the fact that this question has heretofore been fully considered by this court and determined adversely to the contention of the plaintiffs, and that the legislature has from time to time for many years past established and declared a public policy which is inconsistent with the view that these organizations are purely private corporations, and in view of the fact that other questions presented in this case are not so well. settled and will require somewhat lengthy discussion, we do not consider it advisable to review the grounds of our former decision. Neal v. Vansickle, 72 Neb. 105; Barnes v. Minor, 80 Neb. 189; State v. Hanson, 80 Neb. 724; Drainage District No. 1 v. Richardson County, 86 Neb. 355, 365.

The plaintiffs contend that it is not within the power of the legislature to authorize a portion of the property owners in a proposed drainage district to force others in the district to consent to the incorporation and to “bear the burden and liability of such an organization.” No authorities are cited upon this proposition, and we douht whether any can be found. The same objection would apply to the organization of counties, townships, villages, and other similar subordinate public corporations.

It was also objected that there was no lawful attempt by the drainage district to agree with the plaintiffs as to a right of way over their lands before beginning the condemnation proceedings. One of the parties interested in this land testified that the attorney for the district offered $150 an acre for the land appropriated, and “I don’t think I accepted it; I think I said I could not accept it. I don’t remember what I said.” It appears from the plaintiffs’ petition and the evidence that the officers of the district were made to understand that these plaintiffs resisted the right of the district to purchase a right of way across the land. None of the parties interested testified that they were ready and willing to grant a right of way. The appraisers appointed by the county court fixed the amount of the condemnation money, and there is no serious objection to the amount so fixed as unjust or unreasonable. The briefs of the plaintiffs do not refer to any evidence of that nature. There is therefore no merit in this objection.

The plaintiffs contend that the condemnation proceedings were void because they do not condemn and take certain lands of the plaintiff O’Neill which would be flooded by the waters of the ditch. If the plaintiffs’ lands, other than those taken by the condemnation proceedings, are damaged by this improvement, the law affords them a remedy, including the right of appeal to the court of last resort: The statute provides that “the same proceedings for condemnation of such right of way shall be had in all other respects, as is provided by law for the condemnation of rights of way for railroad corporations, the payment of damages and the rights of appeal shall be applicable to the drainage ditches and other improvements provided for in this act.” Section 12. The law is well settled in such case by many decisions of this court. When the remedy at law is adequate, the prosecution of the work cannot be delayed by injunction.

Another contention on the part of the plaintiffs is that a drainage district has no power to condemn and take the land of a private citizen for the purpose of constructing a ditch outside of the district, and to “take water before it reached the swamp or submerged lands within the district and carry it across the private property of a private citizen and empty it into a private lake.” It is not seriously contended that the proposed ditch will “empty it into a private lake.” Campbell v. Youngson, 80 Neb. 322, and, upon rehearing, 82 Neb. 743, is cited, but that case construed another statute. The statute controlling in the case at bar provides that a district may be formed for the purpose of having swamp or overflowed lands “reclaimed and protected from the effects of water, by drainage or otherwise.” Section 1. This language clearly covers this objection.

It is objected that the application for condemnation did not describe-and locate the proposed ditch with sufficient accuracy. The statute requires that, when the supervisors “have agreed upon a location or route for said ditch or ditches and formulated a plan for the other improvements contemplated, then they * * * may present to the judge of. the county court of the county in which said land, easements or franchise are situated, a petition setting forth the location and character of the right of way uceded and describing the lands to be crossed.” Section 12.

The application for condemnation described the proposed right of way over each government subdivision of the lands of these plaintiffs substantially as follows: “A right of way 200 feet in width, being 100 feet on each side of the center line of said Elk Creek Cut-off- Ditch as now located, over and across lot á or the southeast quarter of the southeast quarter of section 29, township 29, range 8, being 5.8 acres, Henry W. O’Neill, owner.” The starting point appears to be definitely stated in the petition. The evidence shows that the line of the proposed ditch was definitely located by the surveyors and was marked with stakes. When the drainage board went over the land the stakes were still in place. Some of them were missing when the appraisers viewed the land. The drawings, which the appraisers had, showed the exact location of the proposed ditch. There is nothing to indicate that the appraisement of damages was in any way affected by any supposed uncertainty as to the location. The county court had power to correct any irregularities in the method of appraisement. If by reason of the difference in the statute from that construed in Trester v. Missouri P. R. Co., 33 Neb. 171, that case is not to be regarded as decisive of the case at bar upon this point, which we do not decide, it seems clear that the application was sufficiently definite to give the county court jurisdiction of the'proceedings. Errors, if any, not affecting the jurisdiction of the court should have been corrected in that court or upon appeal.

We have not found any errors in the record requiring a reversal of the judgment of, the district court. It is therefore

Affirmed.

Fawcett and Hamer, JJ., not sitting.