Drainage Comrs. of Union Drainage District v. Volke
163 Ill. 243 | Ill. | 1896
After a careful consideration of this case we have arrived at the same conclusion as that reached by the Appellate Court, and have concluded to adopt the following" opinion of that court delivered by Mr. Justice Harker :
“Appellants’ first point' of contention is, that the writ should have been quashed because‘of the lapse of time between the condemnation of the land and the suing out of the writ. Mere lapse of time, alone, short of the limitation for the prosecution of a writ of error, will not bar the issuing of a common law certiorari. (Hyslop v. Finch, 99 Ill. 171.) To be barred by the laches of the petitioner it must appear that since the making of the record sought to be reviewed, and upon its assumed validity, something has been done so that great public detriment or inconvenience might result from declaring it invalid. A good illustration of the rule when laches should bar is found in the case of Trustees, etc. v. School Directors, 88 Ill. 100. The petition for the writ is addressed to the discretion of the court, and so, when the petition is filed either in resistance of an order for the writ or upon a motion to dismiss the petition, extrinsic evidence may be heard, not for the purpose of contradicting or enlarging the record, but to show that no injustice has been done the petitioner or that great public detriment and inconvenience might result from quashing the proceedings.
“It is contended that the evidence offered by appellants, to the effect that after the condemnation proceedings against appellee’s land were had the commissioners spent some $12,000 in digging ditches, was sufficient to sustain their motion to quash the writ and dismiss the petition, and should have been considered by the court to that end. It should be observed that the writ in this case does not question the'organization of the drainage district. The quashing of the proceeding whereby appellee’s land was condemned would by no means result in the loss to the district of what had been expended by the commissioners in constructing ditches. There is "nothing in the way of appellants’ proceeding again to condemn, if they are unable to arrive at an agreement with appellee. We agree with the circuit court that the evidence offered by appellants on the motion to quash the writ and dismiss the petition was not sufficient. Clearly it could not be considered on the hearing of the return to the writ made by the drainage clerk. The judgment to be entered on the return to a common law writ of certiorari affects the validity of the record alone, and must determine from its face, solely, whether it is valid or invalid.
“To the contention of appellee that the proceedings should be quashed because the record is silent as to any attempt of the commissioners to procure the right of way by agreement with him before commencing the proceedings, it may be said that appellee would be in a better position to urge this point if his petition did not show that he appeared before the justice in answer to the summons, and entered upon the trial of the question of damages without objecting that no attempt to settle with him had been made.
“For the reason that the record shows that the jury allowed appellee no damages for the land taken for the ditch the circuit court properly rendered judgment quashing the proceedings. The proceedings were under the Farm Drainage act, and the language governing the conduct of the jury is: ‘The jury shall hear the evidence offered in the case as to the value of the land proposed to be taken and all damages consequent upon the construction of the proposed work, and may go upon the premises for the purpose of viewing them; and they shall return as their verdict the amount of damages found, if any, in favor of the owner or owners and against the commissioners. ’ We do not think the words ‘if any’ authorized the jury to return a verdict that appellee was entitled to no damage for the land actually taken for the ditch. They could have arrived at no such conclusion without considering benefits. But under the statute under which the proceedings were had the jury had no right to consider benefits. The provisions of this act must not be confused with those of the Levee act. Our Supreme Court has held that the Levee act and the Farm Drainage act are separate and independent codes of law applicable to the subject of drainage. A district organized under the Farm Drainage act is subject only to the provisions of that act, and those of the other act have no application to it. (Gauen v. Drainage District, 131 Ill. 446.) Acting under this act, a jury must in its verdict find as damages the value of the ground used for the ditch, and if the tract through which the ditch passes is otherwise damaged it must be included. The commissioners fix the classification of lands and assess the benefits.”
It may be further observed in respect to the evidence offered to prove laches on the part of the petitioner, that it was not shown that the digging of the ditches and expenditure of the moneys therefor occurred before the filing of the petition for the writ. The petition was filed in June and the hearing had in September, and while the evidence showed that when the hearing was had the work had been done and the money expended, it was silent as to the time.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Mr. Justice Cartwright took no part.