| Ill. App. Ct. | Apr 28, 1894
delivered the opietoh of the Court.
This case was here at a former term—48 Ill. App. 17" date_filed="1892-10-24" court="Ill. App. Ct." case_name="Allman v. Lumsden">48 Ill. App. 17. The questions then discussed concerned only the propriety of an appeal from the County to the Circuit Court, but as the scope of the proceeding was then fully stated, it need not be repeated now. Having been remanded, the case was tried in the Circuit Court and a judgment was entered according to the prayer of the petition from which an appeal has been perfected to this court. The question before the Circuit Court was mainly as to the facts, that is, whether the owners of the lands involved had connected with the ditches or drains of the Kankakee Drainage District, or whether their lands had been or would be benefited by the work of said district, so that such owners were to be deemed as having made voluntary application to be included in the district.
On this question the proof is conflicting and considerable testimony was adduced on each side. It would require no little time and space to refer in detail, or even generally, to the evidence of the various witnesses, and as no good purpose could be accomplished thereby it is unnecessary to do so. It is very clear that as to some of the lands the finding of the Circuit Court is supported by the proof and we can not say that it is not so as to any. Certainly, we t.hink the conclusion should not be disturbed upon this ground.
Another point before the court was as to the effect of the organization of a mutual drainage district, under the provisions of Section 77 of the Farm Drainage Act.
It is argued that the validity of that organization can not be questioned collaterally; that it is a de facto district, and whether it exists de jure is not material. Admitting this to be so it does not follow that the lands may not be attached to the Kankakee district. If they are within the terms of section 58 they may be attached although they are also in another district organized under another provision of the drainage laws. The language of that section is very broad, and the only conditions required are that the lands are connected with the district by ditches or drains, or that they are or will be benefited by the work of the district.
The section does not in terms or by implication except the case of lands that may already be organized in another district under other provisions. It may well be that a district organized under the levee act as this was, might afford special drainage useful to adjoining lands, having more limited facilities and organized under the farm drainage act. If so, it is but just that lands so benefited should contribute their due proportion to the expense.
There is much to induce belief that the only object of the parties in maintaining the mutual drainage district was to evade the provision of section 58, under which the present proceeding was instituted, but if the view just expressed is' correct it is immaterial, to consider that point or the effect that might follow if it should be found that such was the purpose, and that there had in fact been no bona fide user under that organization.
The brief of appellant calls attention to the rulings of the court in reference to certain propositions of law presented by appellant. It appears that these were not presented until after the case was decided—though it was provided in the order granting the appeal and extending -the time for filing the bill of exceptions that propositions of law might be presented within forty days.
The Practice Act, Section 41, clearly intends that such propositions shall be presented before the case is decided, otherwise their proper use would be impossible. Carlyle, W. L. & P. Co. v. City of Carlyle, 31 Ill. App. 325" date_filed="1889-03-14" court="Ill. App. Ct." case_name="Carlyle Water, Light & Power Co. v. City of Carlyle">31 Ill. App. 325; Kramer v. Liester, 35 Ill. App. 391" date_filed="1890-03-10" court="Ill. App. Ct." case_name="Kraemer v. Leister">35 Ill. App. 391. We must therefore decline to consider the points urged under this assignment of error.
Cross-errors are assigned by the appellees on the ground that the action of the County Court was final, and if not that the appeal was improperly taken to the Circuit Court. It is unnecessary to repeat what was said on these points when the case was before us on the former appeal. The cross-errors are overruled.
The judgment of the Circuit Court is affirmed.