Fargo v. Aaseth

137 N.W. 608 | S.D. | 1912

Lead Opinion

CORSON, J.

On the 5th day of August, .1909, a -petition, signed by P. J. Conklin and about 50 others living in Yankton and in Clay counties, S. D., was filed with the boards of county commissioners of said counties, praying that a drainage ditch -be established, commencing near the Chicago, Milwaukee & St. Paul Railroad track some two or three miles west of Gayville, and extending generaly in a southeasterly course south of said railroad track through Yankton and Clay counties to the Vermillion river. A copy of the -petition so filed with the board of county commissioners of Yankton county was forwarded to the state engineer, as required by section 1 of chapter 102 of the Laws of 1909, relating to drainage. The appellants herein, and certain other owners of land -along the line of the said' proposed ditch, opposed the construction of the same and filed a remonstrance. Notwithstanding the favorable report of the engineer employed by the county commissioners to report on the feasibility of the project, the objections of the remonstrants were adopted by the boards, and they severally refused to grant the petition of the petitioners. From the order so made by the county commissioners denying the petition, the petitioners took an appeal to the circuit court' of Yank-ton county. Upon the trial of the case by the court without a jury, the order of the hoards was reversed, and the court, after finding the facts as to the preliminary proceedings, found as follows:

“(4) That thereafter the McDaniel-Trimmer Company became, or was succeeded by the Missouri Valley Engineering Com■pany, and under and in pursuance of said contract made a careful and complete survey of the territory proposed to be affected by the Yankton-Clay county ditch. Said territory consists of a wide, flat tract of land of about 30,000 acres, lying between the Chicago, Milwaukee & St. Paul Railroad on the north and the Missouri river on the south, in Yankton and Clay counties. *

* * The general slope of said tract of land is southeasterly, and the ground, generally considered, is very flat, rising gradually toward the Missouri river. The main line of said proposed drainage, as surveyed and recommended by said engineering company, commences at a point 1,132 feet west of the southeast corner of section 4, township 93 north, range 54 west, and runs in a generally southeastern direction to1 the Vermillion river; the total length of the main ditch being 17.38 miles.

“(5) The court finds that said entire tract of land is low, wet land, and the general slope thereof is in a southeasterly direction toward the Vermillion river along the line of said proposed main drainage ditch; that in rainy seasons large portions of the land which will be affected by said drainage ditch cannot be advantageously cultivated because of excessive moisture, and that water stands in what is termed the Gayville slough, near the town of Gayville, and at other places the year around; that such water becomes stagnant, so much so that at times green scum forms upon it, and water commonly stands in the cellars of houses in the town of Gayville and elsewhere in the territory which will be affected by said proposed drainage.

“(6) The court finds that the construction of -said main drainage ditch, as described in the report of said Missouri Valley Engineering Company, will furnish, a satisfactory outlet for such lateral drains as may he necessary to completely and effectually drain the tract of land hereinbefore described, and that such main drainage ditch will be conducive to the public health, convenience, and welfare, and is necessary and practicable for draining agricultural lands.

“(7) ' The court further finds that the portion of the land along the -main line of said proposed drainage system lying in Yankton county, if drained at all, must be drained through Clay county to the Vermillion river substantially along the lines of said proposed drainage ditch, and that no part of the land which will be affected by said proposed drainage system can be drained directly into the Mis-ouri river ini times of high water, when 'drainage is most needed. * *

From the foregoing findings of fact,-the court found as conclusions of law:

“(i) That the Yankton-Clay County Drainage ditch, as in the foregoing findings generally described, and as more particularly described in the report of the survey of the Missouri Valley Engineering Company in said findings referred to, should be established, and should be constructed under the direction of the county commissioners of said counties, acting conjointly. ■

“(2) The appellants herein are entitled to judgment establishing said! drainage ditch and reversing the order or resolution of the boards of county commissioners of Yankton and Clay counties, from which the appeal hereinbefore referred to was taken-; and said 'judgment should direct the county commissioners of Yankton and Clay counties to proceed with the construction of said drainage ditch in the manner required by the law ’relating to and prescribing the procedure of the county commissioners subsequent to the establishment of a drainage ditch. Let judgment be entered accordingly.”

From the judgment of the -circuit court so entered, an appeal was taken to this court by Fargo, Jet-ley, junker and Lund, the four appellants named herein.

[1] Upon the case being -called for trial in the circuit court a motion to -dismiss, the appeal was -made ‘by the respondents therein, on the ground that the -orders appealed from- were not judicial; that they were official and not appealable; and that the court w-a-s without jurisdiction to entertain an appeal from said orders. This motion was denied by the -court, and its -denial is made ground for the first, second, and twenty-fifth assignments of error.

Section 9 of chapter IQ2, Laws -of 1909, amending section 12 of chapter 134, Laws of 1907, among other things, provides: “An -appeal will lie upon any final order or determination of a board of county commdmssioners establishing or denying the 'proposed -drainage * * * to the -circuit court of the county in which said drainage is located, by any -one deeming -himself aggrieved by any such order or determination.”

It is contended by the appellant that the provisions in the law allowing an appeal from the decision of the 'board of county commissioners is unconstitutional, for the reason that the action of the board of county commissioners is administrative and not judical, and that their decision contains matters of discretion and administrative matters- that are not subject to review -by appeal; and for the further reason that section 6 of chapter 2i of the state Constitution of this state, adopted in 1906 provides that the Legislature “may provide for the organization of drainage districts for -the drainage of land for any public use, * * * and may vest the corporate authorities of counties, town-ships and municipalities with the power,” etc.

It is contended, -however, by the respondents on this appeal that this is not an open, question in this -court, as this court decided, in re Sorenson Drainage Ditch, 131 N. W. 300, that an appeal will lie from the decision of the boards of county com-missionerss in drainage cases establishing or refusing to establish drainage ditches, which decision- is sustained by the previous decisions of this court in the analogous case of Davison County v. C. M. & St. P. R. R. Co., 26 S. D. 57, 127 N. W. 728, and also in the analogous cases of Pelletier v. City of Ashton, 12 S. D. 366, 81 N. W. 735, and Wickhem v. City of Alexandria, 23 S. D. 556, 122 N. W. 597.

We are of the opinion that the respondents are right in their contention, -and that the question of the right to appeal from the decision of boards of county commissioners in the matter of drainage ditches is fully established in this jurisdiction. It will be noticed in the clause of the Constitution above quoted there is no limitátion of the right to appeal from the decision- -of boards of county commissioners in the matter o-f -drainage -ditches, and that the right of such appeal is not taken, therefore, -directly or by implication. While ft is true there is- a conflict in the authorities as to the right of appeal in this -class -of cases, th-s court ha-s followed thee line -of decisions holding that -the right -of appeal exists, and that the appellate court has full jurisdiction to hear and determine the questions arising in s-u-ch proceedings.

The general -clause-, also, in the Political -Code, authorizing appeals from all orders of the board of county commissioners, has -uniformly been -construed to give the right of appeal in' this class of cases since the decision of the territorial Supreme Court in Pierre Water Works Co. v. Hughes County, 5 Dak. 163, 37 N. W. 733. The necessity for such right of appeal will be apparent to all persons familiar with the influence's that may be brought to beár upon county commissioners and city councils, and the importance to the people of the right of appeal to a court which will be less likely to be influenced in the determination of questions presented1 in such proceedings. Without knpunging any improper motives to the county commissioners of Yankton and Clay counties', the importance of the question presented in the proceedings now before us, involving as it does the drainage of about 32,000 acres of land which, if properly drained, it would appear from the evidence, would constitute one of the garden spots of the state, and which is now, by reason of its present condition, of apparently little value, clearly shows the propriety of" 'having such decisions reviewed by 'an impartial court entirely removed from the influences that may have surrounded the boards of county commissioners and resulted in their unfavorable action-in the case at bar. Without further discussing the question of the right of appeal, we are clearly of the opinion that the court was right in denying the motion to dismiss the appeal and in taking jurisdiction over the same.

[2] As we haVe seen, the court in its finding's found “that the construction of said main ditch, as described in the report of said Missouri Valley Engineering Company, will furnish a satisfactory outlet for such lateral drains as may be necessary to completely and effectually drain the tract of land hereinbefore described, and that such main drainage ditch will be conducive to the public health, convenience and welfare, and is necessary and practiclable from draining agricultural lands.”

It is contended by the appellant that this finding is not sustained by the evidence; but we are satisfied, after a careful examination of the same, that the preponderance of the evidence in the case clearly warrants the court’s findings, and that such a drainage ditch as the court finds necessary will be of great benefit to the owners of property, and will result in a substantial increase in the value of land and in the improvement of the health of the people living along the line of or in -the vicinity of the proposed ditch. The evidence is very voluminous, and .an attempt to give a review of it would prolong this opinion to an unwarrantable length, and would serve no useful purpose. The • case was tried by a judge who has resided at Yankton for a third of a century or more, in the vicinity of the land sought to' be drained, and who has evidéntly considered the evidence for and against the establishment of the drainage ditch, and the advantages and disadvantages to the owners of the property therefrom; and the fact that that court, after a very lengthy and apparently exhaustive trial of the questions involved decided in favor of the construction of such a ditch, and upon motion for a new trial declined to grant the same, must necessarily have great weight with this court.

A. B. McDaniel, who made the survey and the report, heretofore mentioned, to the county commissioners, was examined at great length-, and seemed to be able to give clear and logical reasons why the construction of such a ditch would' accomplish the purpose sought, with the lateral drains that migh be necessary to drain the 30,000 acres described in the petition, without doing serious injury to any of the owners of -the land adjoining the said ditch; and his conclusions, stated in his report to the boards of county commissioners, are fully sustained by his evidence, when subjected to a rigid cross-examination. It is true there was an engineer introduced as a witness by the appellants who seemed to dispute many of the propositions -made by the engineer, McDaniel; but the reasons given for his conclusions- are not satisfactory to this court.

[3] Error is alleged on the part of the appellant in the admission of documents (Exhibits 15 and 16) purporting to- have been issued by the Department of Agriculture, under the direction of the Chief of Irrigation and Drainage Investigations, on the ground that it was not shown that the pampihler came from the Department of Agriculture, and that -the pamphlet and map are not “public documents,” within the meaning of section 528, Code of Civil Procedure; nor is it shown that his pamphlet was published under the direction of Congress, or of either house thereof.

We are of the opinion that the court committed no error in admitting- these documents. The title of Exhibit 15 is as follows : • .

U. S. Department of Agriculture,

Office of Experiment Stations,

A. C. True, Director.

Annual Report of Irrigation and Drainage.

Investigations, 1904.

Under the Direction of Elwood Mead,

Chief of Irrigation and Drainage Investigations.

Separate No. 9:

Report of Drainage

Investigations, 1904.

By C. G. Elliot,

Engineer in Charge of Drainage Investigations.

(Reprint from Office of Experiment Stations Bulletin No. 158.)

(Seal of Department here.)

Washington:

Government Printing Office.

1905.

On the margin of the map (Exhibit 16) are printed the following words: “U. .S. Dept, of Agf. Bui. 158, Office of Exp. Stations, Irrigation and Drainage Investigations.”

By section 528, Code of Civil Procedure, it is provivded: “ * * * The term ‘public document’ is defined to be all the publications and maps printed by order of the Eegislative Assembly, or Congress or either house thereof; and all such documents are admissible in evidence.

In McCall v. United States, 1 Dak. 320, 46 N. W. 608, it was held by the late territorial Supreme Court, as appears by the headnote: “All publications of state papers, maps, charts, and public documents, when such publications are by -authority of ' Congress, are as valid evidence as the originals from which they were copied, and may be introduced and read as evidence on mere inspection.” And in U. S. v. Beebe, 2 Dak. 292, 11 N. W. 505, the former case of McCall v. U. S. supra, was approved and followed.

By the Agricultural Department appropriation act of April'23, 1904, found on page 294 of the statutes enacted - by the Fifty-Eighth Congress (33 Stat. 294, c i486), it is provided as follows: “Irrigation and Drainage Investigations: T01 enable the Secretary of Agriculture to investigate and report. * * * and upon plans for . the -removal of seepage and 'surplus waters by drainage * * * and for the preparation, printing, and illustration of reports and bulletins on irrigation and drainage including employment of labor in the city of Washington or elsewhere; and the agricultural experiment stations are hereby authorized and directed to co-operate with the Secretary of Agriculture in carrying out said investigations in such manner and to such extent as may be warranted by a due regard to the varying conditions and needs and laws of the respective states and territories as may be mutually agreed! upon, and all necesary expenses, sixty-seven thousand five hundred dollars.”

On page 590 of the United States statutes enacted by the Fifty-Eighth Congress (33 Stat. 590) appears the following resolution adopted by the Senate and House of Representatives and approved April 27, 1904: “Resolved, by the Senate- and House of Representatives of the United States of America in Congress assembled, that there be printed eight thousand copies of the report of the Director of the Office of Experiment Stations, prepared under the supervision of the Secretary of Agriculture, on the work and expenditures of that office and of the agricultural experiment stations established in the several .states and territories under the act of Congress, of March second, 1887,-for 1903, * * * ' .and that annually hereafter a similar report ’hall be prepared and printed, the edition to be the same as for the report herein provided1.”

[4] It will thus be seen that the publications made by the Agricultural Department are made by-virtue of acts of Congress, and come clearly within the provisions' of those sections. Mr. McDaniel testified that he had a government report, prepared by Mr. Elliot, with .reference to the same ditch, called the “Gayville Ditch.” He further testified that the map (Exhibit 16) had been detached from the book, but that, the map was in substantially the same -condition as when it left the -printing office; except for some slight changes', which -he 'fully described. Of course, the court will take judicial notice of the acts and resolutions of Congress, or either house, and no proof was necessary, therefore, as to those acts and resolutions. These reports, being official documents issued by the Agricultural Department under the power conferred upon that department by the laws of the United States, were, under the provisions of our Code, and the cases above referred to, 'properly admissible in evidence; and the contention of the appellants, therefore, cannot be sustained.

[5] It is further contended by the appellants that exhibits 4 to 14 inclusive, being the report of the survey of the proposed ditch, were not offered in evidence; but it appears from the record in this case that this report of the survey of the proposed ditch was before the county commissioners at the time they had the matter before them.

It is -contended by the respondents that it was unnecessary to offer these i!n evidence on the appeal under the -drainage law, as it is made the duty -of the county auditor to transmitía to the clerk -of the -circuit co-urt the petition and all other papers and all other records in said matter, or certify copies thereof, and such matters shall be heard as an original action in said circuit court; and that such documents come properly before the -court for its consideration, without each separate document being specifically offered in evidence.

It appears from the record in this case that the county auditor of Yankton -county testified that he -had turned over to the clerk of the court all the records, documents, and papers that were before the boards, and thereupon one of the counsel for the respondents made the following statement: “I take it that all of these papers and proceedings are before the court -on this appeal, and that they do not need to be offered in evidence any more than they were before the boards of commissioners. This matter comes up -before the court de novo-. It comes- before the court just as it came before the boards of county -commissioners in the first place; and it is now for this court to- decide the sam-e questions that were before the boards of county commissioners when- it came before the boards acting together.” To- this- statement the court replied: “That is the w-ay we have proceeded in these cases; and if there is no objection it will be considered that all the papers and documents pertaining to this proceeding are before the court, without being formally introduced, just the same as they were before the boards of county commissioners.” .No objection to the statement of counsel or of the court was made, so far as the record discloses. It would seem therefore from -this statement made by counsel and the reply of the court, to which no objection was made by the then respondents, that the counsel for the appellants in the lower court were fully justified1 in assuming that all the documents and papers used before the -boards of commissioners were in fact offered in evidence on the trial of the action; and that the contention of counsel for the appellants herein,, that they were not formally offered in evidence, in vi'ew of the proceedings, is not tenable.

We are of the opinion, therefore, that the report of the engineer, McDaniel, was before the court, and might properly be considered -by it in its findings in the case, notwithstanding, the formal offer of the same made on the trial. But assuming that the report of McDaniel was not in evidence, we are of the opinion that there was sufficient evidence, independent of this report to justify the findings of the court; and that therefore the court committed no error in its findings upon the evidence adduced independently of the report. As before stated, the evidence is too voluminous to attempt to give it in detail in this opinion, extending as it does over several hundred pages of closely typewritten matter.

[6] It is further contended by the appellants that there was no evidence as to the number or expense of the lateral drains required, and, as the -court failed to find or determine the number of such laterals, the dimensions of the same, and their location, and confined its findings and judgment to the -main drainage ditch alone, that therefore -the findings are not sufficient to sustain the' judgment, and in order to- be binding upon the counties the laterals and locations of the same should have been provided -for.

We are of the opinion that this contention is clearly untenable, for the reason that the main question presented by the appeal was as- to whether or not the agricultural lands in question required the construction of a drainage ditch between the terminal points presented in the petition, -and1 if so, the line upon which said ditch should be construced. When, therefore, 'it was determined by the court that such a drainage ditch was required in order to drain ,the agricultural lands, and that the same, would be. conducive, to the'health of .the community, he decided all it. was necessary for him to decide in the case; and tire, details as to the manner and method of constructing the main ditch, and .the-number and manner of construction of the laterals, in-.order to- accomplish the .proper drainage of the- district, were left to be carried into effect by the county commissioners of the respective counties. The powers and duties of the boards in the construction of the ditch as ordered by. the court are in fact applicable, the same as if the hoards had decided that the drainage ditch as surveyed was necessary and proper, and had proceeded to carry out that determination -by making the proper orders, letting the proper contracts, and establishing the necessary levels,, assessing the -damages and benefits, etc. In other words, the court’s, decision had the effect of requiring the boards to grant the petition sought, leaving the details to the further action of the boards.

We have not overlooked the other errors assigned as to the admission and rejection of certain evidence of Vinson and others; but we -are of the opinion- that there is not sufficient merit in these exceptions assigned as error to warrant a separate consideration of them in this opinion. It must suffice, therefore, to say that, in our opinion, the court wes dearly right in its rulings upon these questions, and that no prejudicial error has resulted to- the appellants from- the admission or exclusion of any evidence in the case.

The judgment of the circuit court 'and order denying a new trial are affirmed.

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Dissenting Opinion

WHITING, J.

(dissenting). I am unable to concur in the foregoing opinion. Under the. decree of the trial -court, the county commissioners are -directed to proceed to establish the main drainage ditch, and it is left to said commissioners to determine what, if any, lateral ditches shall be dug to complete the drainage system. From .the findings of the said court, it is clear that it -did not intend that the drainage system should consist of this main ditch only, -as Hie court finds that such main ditch “will furnish a satisfactory outlet for such lateral drains as may be necessary to completely and effectually drain the tract of land hereinbefore described;” and it is certainly clear from the record that such main ditch .alone, -while it might be “conducive to the public health, convenience, and welfare, and necessary and practicable for draining* agricultural lands,” .is not alone sufficient for the drainage of enough land's as to be practicable from' a financial standpoint. While I do not think it was necessarily incumbent upon the trial court to determine the exact number of laterals and thei'r locations, and I concede that these are maters that might properly be left ■to the discretion of the commissioners, I am clear that such court should have received evidence of the cost of the complete drainage system, so as to determine whether the benefits flowing from such a system would be commensurate with such cost, and that, until it had done so, it should not have directed the construction of any part of such system; and, if it had done so, that it then should have directed the construction of the whole system. The trial court could not properly excuse itself from investigating and passing upon the whole drainage system, merely because, as set forth in one of its findings, there had “been no argument before the court with reference to the number of lateral drainage ditches which may be needed or which should be constructed tributary to said main drainage ditch, and * * * ' no evidence introduced before the court with reference thereto', other than * * .

For all that appears from! the findings of the court, the construction of a complete and efficient drainage system may result in the confiscation of every acre of farm lands within the tract supposed to be benefited thereby. Zinser v. Board, 13 Iowa, 660, 114 N. W. si.-

This case should be demanded to the circuit court, with directions" for it to make findings and decree in relation to the whole drainage system.

McCOY, P. J., concurs in the views expressed by WHITING, j-