141 N.W. 393 | S.D. | 1913
This matter is before us on rehearing. For -the former opinion, see 30 S. D. 79, 137 N. W. 608.
The important features of the argument on rehearing were directed to the failure of the trial court to pass upon the questions of laterals, of dikes along the James river, and of damages to lands both within and without the right of way. The whole territory covered by the proposed drainage system consisting of about 32,000 acres is subject to overflow. About every other year practically the entire territory is unfit for cultivation on account of excessive moisture caused by overflow, rainfall, and flood waters. The results contemplated by the construction of the main drainage ditch are the quick removal of the surface waters occasioned thereby, the drainage of agricultural lands, and the promotion of the public health, • convenience, and welfare. As we understand the evidence, the chief purpose of the laterals is to. completely' drain the wet lands tributary to the main ditch; in other words, to1 remove ponds and sloughs, and to provide subdrainage for such tributary lands. In so far as the main ditch will carry off the rainfall, overflow and flood waters, independently of the laterals, all of the lands that will be benefited will be assessable in varying amounts, whether the laterals are provided or not. In so far as the public health, convenience, and welfare are concerned, the benefits will partially, if not largely, accrue by reason of the construction of the main ditch. These benefits, together with the benefits arising from the removal of rainfall, overflow and flood waters, are apportionable to all of the lands benefited without regard to the question of' sub-drainage, or the drainage of ponds and marshes in particular spots. According to the engineer’s estimate, the average cost per acre of the proposed drainage system, including laterals, will be approximately $3.60, excluding the cost of dikes. The cost of the pro-
Upon the argument on rehearing the point was raised by appellant’s counsel that the trial in the circuit court being de novo that court should'have made a finding upon all of the matters in issue; that it should not have referred the matters of laterals and dikes to the discretion of the joint boards. This point is rather inconsistent with the argument in appellants’ brief wherein complaint is made that the trial court went -too far in its decision. It was there claimed that the court should not have made an order establishing the ditch, but should have confined its decision to the issues of public health, convenience, and welfare, and necessity and practicability of the drainage. Suffice it to say that these were the chief questions at issue, but that in deciding these it was proper for the court to establish the ditch. A determination of the questions as to laterals and dikes was not necessary to the determination of the main issues. These questions were not fully’presented, and for the reasons hereinbefore stated we are of the opinion that the trial court acted with proper discretion in leaving to the joint boards these matters of detail.
We have given careful attention to all of the points raised in
The former opinion and judgment of this court are adhered to.