151 Minn. 284 | Minn. | 1922
Eight property owners, affected by assessments for benefits for a ditch in Martin county, appealed to the district court. The court
The engineer recommended a tile ditch, to be constructed of larger tile, paralleling at a distance of about a rod the original ditch and its laterals, but varying somewhat in distance at different points. At 13 points the tile of the new ditch were to approach the tile of the old, and were to be laid alongside them. Manholes were to be built about them, and the two ditches thus joined. This plan was adopted. The cost of the new ditch was 2 3/10 times as great as the cost of the original ditch. The viewers assessed the lands here involved at 2 3/10 times the amounts for which they were assessed for the original ditch. Upon the appeal to the district court the jury assessed them for amounts substantially less.
The statute cited contemplates that repairs may become necessary. It also contemplates that it may be necessary to widen, deepen or extend in consequence of the subsequent construction of lateral or private ditches or in consequence of the subsequent construction of other connecting ditches carrying water which goes to: the original ditch, such lateral, private or public ditches not being included in the assessment for the original ditch, or “in consequence of the original ditch not having been constructed of sufficient capacity.” insufficient capacity of the original ditch is alleged in the petition. It is not to be inferred from anything said that the auxiliary tile ditch -seas not properly constructed under the provisions of the statute applicable when it becomes necessary “to widen, deepen or extend” the original ditch, “in consequence of the original ditch not having been constructed of sufficient capacity.” As is held in Lee v. County of Jackson, infra, page 310, 186 N. W. 713, where there is jurisdiction the validity of the order establishing the ditch cannot be attacked on appeal from the assessment; but in view of the result in State v. County Board of Polk County, supra, page 274, 186 N. W. 709, where the.question there involved was directly presented on certiorari, it seems on principle that the putting in of additional tile alongside the old tile, connected by a series of manholes, comes within the proper meaning of widening, deepening or extending.
The statute provides for the appointment of viewers, who shall equitably apportion the cost of the authorized construction between the lands benefited by the original ditch, and those benefited by the private, lateral or other ditches, in proportion to the benefits to such respective ditch systems resulting from the original ditch and the subsequent ditches, the same as if they were originally one ditch system, and who shall then equitably apportion and assess the por
“The fact that such portion of such cost of repair, widening, deepening or extending, and such expenses respectively apportioned to such lateral and subsequent ditch system or systems, and to such original ditch system is respectively apportioned and assessed against the respective lands benefited thereby, in the same proportion as the respective original assessment of benefits therein shall in all cases be prima facie evidence that such assessment and apportionment is made in compliance with the provisions and requirements of law.”
The contention of the county, relative to the provision just quoted, is that the only- permissible assessment upon the lands involved was of an amount 2 3/10 times that which they bore in the original ditch proceeding. It cannot be sustained. There were no subsequent laterals or ditches or a subsequent ditch system. If it be conceded that the statutory proportionate assessment applies to a ditch such as the one involved, as well as when there are subsequent laterals or a subsequent ditch system, the -statute makes such assessment only prima facie evidence of a lawful assessment. The county’s contention makes it conclusive evidence. The amount of benefits was submitted to the jury with only the objection that benefits must be fixed at 2 3/10 times the amount of the assessment for the original ditch. The court was right in declining to -adopt the contention of the county. We are not to be understood as holding that the statutory provision as to an assessment proportionate to the assessment for the original ditch has application when the ditch is merely widened, deepened or extended because of ’ original inadequacy, there being no additional territory or other ditches or a ditch system added, or that it has not. The question has not been particularly discussed and is left for consideration when a decision is Decessary and it is not in this case. There is no intimation either way.
Order affirmed.