72 Neb. 71 | Neb. | 1904
Our former opinion in this case appears in 61 Neb. 376. A rehearing was allowed, and the case was argued the second time before the commission. Since that time one or more opinions have been written, but we have been unable to approve of any of them; therefore the case is again considered by the court.
On a careful examination of the record, we are satisfied with our former opinion on the question of the jurisdiction of the county' hoard to locate the ditch and levy the.assessments, and decline to again consider that matter. However,
It is strenuously urged that the lands lying west of the ditch, and at a higher level, are not benefited, because the natural drainage is toward the east and away from such lands. The original determination of this question is confided to the county board, and we can only consider it according to the rules which obtain in error proceedings. The judgment of the board thereon is final and conclusive, provided it is sustained by the evidence. It therefore only remains for us to ascertain whether there was sufficient competent evidence before the board in this case to justify its conclusions and sustain its judgment. It appears from the record that the general character of the land in question is flat and level, Avith a slight fall or natural drainage to the east; that this .drainage is someAvhat obstructed by lateral ridges and by ditches excavated in the construction and repair of the county roads running through .51. The land is covered Avith SAvales and depressions, Avhere the Avaters accumulate and sloAvly seep aAvay or evaporate. It is a matter of common knoAvledge that drainage benefits such land, but the manner and extent of such benefits are best IcnoAvn and understood by engineers, who are experts in the matter of sanitation and land drainage. Therefore when the engineer in charge of such work has examined the lands, has made his estimates, and reported them to the county board, in the absence of fraud, such report ought to, and does, furnish prima facie evidence of the benefits AAdiich will accrue to each tract of land, and such evidence is sufficient to sustain the orders of the board, unless it is overcome by competent proof to the contrary. The engineer avIio had charge of the improvement in question, in addition to his findings and report, stated on the witness stand that all the lands included in his report would be benefited, and that he did not linow of a foot of that land but what the water falling on it would get into the ditch. It does not necessarily follow that, because some of the land does not lie on or touch'
It is neither necessary nor profitable to multiply reasons, because we think the statements contained in our former opinion show conclusively that there was competent evidence sufficient to sustain the findings of the board and the assessments against all of the lands in question therein. We are firmly of the opinion that the evidence contained in the bill of exceptions, together with the report of the engineer, was amply sufficient to justify us in reinstating the order of the board. Although there may be some conflict in the testimony, under the rule above announced, the order of the board should not be set aside for that reason. It follows that our former opinion was right, and is therefore adhered to.
Former opinion adhered to.
took no part in the decision.