208 P. 407 | Idaho | 1922
This action was brought by appellant to restrain the collection by respondents of the sum of $3,950.94, which respondents claimed to be due from appellant under an assessment made by the commissioners of Drainage District No. 2 of Benewah county, Idaho, against the lands of appellant to take up certain outstanding warrants issued by said district and to quiet title to said lands against the claim of lien for said amount asserted by said drainage district. Of this amount appellant claims $3,415.69 to have been levied without legal authority. A temporary injunction was granted by the trial court restraining the collection of any portion of said sum except the amount due from appellant for the payment of interest on bonds, and twenty per cent of the remainder of said assessment. Thereafter an amended and supplemental complaint was filed by appellant attacking an assessment levied by ’said drainage district commissioners in the year 1919 by which it was attempted to collect from appellant the sum of $3,196.25, in addition to the amount claimed in the original complaint. Of this latter assessment appellant claimed $2,661 to have been levied without legal authority and the court restrained the collection of any part of said assessment levied in the year 1919 except $535.25 for interest and twenty per cent of the remainder of said assessment. The ease was tried before the court without a jury, and after making findings of fact and conclusions of law the court entered judgment for the respondents sustaining the validity of the assessments made in the years 1918 and 1919, but denying the
Drainage District No. 2 of Benewah county, Idaho, was organized on April 17, 1916. It contains a little less than 500 acres of land, all of which was owned at the time of the organization of the district by Fred Bussell, H. H. Hibbard, George Murphy, E'. M. Parker and Bertha Urbach. Some time after the organization of the district a corporation was formed under name of the Northern Securities Company, which acquired the land owned by Parker and Hibbard and nearly all of that owned by Mnrphy, and in October, 1917, appellant entered into a contract to purchase the land of Bertha Urbach, which purchase was completed in the year 1920. Thus appellant Murphy and said Securities Company at the beginning of this action owned all the land in the district, appellant holding a trifle over one-fourth of the entire area.
The commissioners appointed by the court made an assessment against the lands of the district of $29,683.80, which was approved by the district court, and thereafter an issue of bonds for said amount was authorized by said district. The bonds were sold, and the work of diking and ditching said lands was begun. In the fall of 1917, when the work of reclaiming the lands of the district was, roughly speaking, about one-half done, the money derived from the bond issue was exhausted and the drainage commissioners continued the work, raising the money therefor by issuing the warrants of the district, which were registered with the county treasurer, there being no funds of the district with which to pay them. About the last of the year 1917 and the first of the year 1918 an unusual flood was experienced in the valley of the St. Joe Biver, the water rising at that time to a higher point than was ever known before at that season of the year. This flood resulted in temporarily stopping the work and doing more or less damage to the dikes already built. After the high water subsided the
The attempt to levy the assessment for 1918 was made by filing with the county auditor of Benewah county on August 7, 1918, a certificate as follows, and that for 1919 by a similar certificate:
“Certification of the Estimate and Cost of Maintenance and Necessary Eepairs in Drainage District No. -2-for the year 1919.
“To the County Auditor, of the County of Benewah, State of Idaho:
“It Is Hereby Certified, By the Board of Drainage Commissioners of Drainage District No. Two of Benewah County, Idaho, that the amount'of the estimate of the cost of maintenance of the drainage system constructed in said district, including the cost of making any necessary repairs that it may become necessary to make in the maintenance of such system int. on bonded indebtedness $2077.88, and outstanding warrants $13196.75 during the year 1919, is the sum of Fifteen Thousand Two Hundred Seventy-four & 63/100 Dollars.
“And in accordance with Section 23, Chap. 16, 1913 Session Laws, of the State of Idaho, you are hereby instructed and required to apportion such amount, to-wit, the sum of Fifteen Thousand Two Hundred Seventy-four and 63/100 Dollars, to the land owners in such district benefited by the improvement therein, in the proportion of Thirty-one ($31.00) Dollars per acre (which proportion is the same proportion in which the maximum benefits were originally assessed) and to add such amount to the general taxes of such land owners and collect it therewith.
“Dated this seventh day of August, 1918.”
We think this point is decisive of the case. All the commissioners and the engineer in charge of the work, as well as other witnesses, testified to conversations with appellant at or about the time the funds from the bond issue were exhausted and during the time the work was being carried on by the issuance of warrants, which conversations strongly support the contention of respondents that appellant was fully acquainted with all of the affairs of the district. Appellant claims that at the time he purchased the Urbach
An examination of the record satisfies us that while the evidence is conflicting there is sufficient evidence to sustain these findings of the trial judge, and that appellant is estopped to claim that said assessments to take up said outstanding warrants do not constitute a valid lien against his land within said district.
C. S., sec. 4522, reads as follows: “In any case where the work set out in the plan for drainage as provided in this title, is found insufficient, a new estimate of benefits may be made, based on the additional work proposed, and additional assessments may be made on the lands benefited in conformity with the procedure hereinbefore provided, and the lands in said district, or any part of such lands, shall be assessed in proportion to the benefits estimated as accruing to such lands because of such additional work and improvements. ’ ’
It is clear that when the commissioners of said district became aware of the fact that the funds raised by the bond issue were about to be exhausted and that a great amount of work was yet to be done they should have proceeded to levy an additional assessment in the manner provided by said section 4522. As we understand appellant’s position he is seeking to avoid payment of the proportion of the additional expense assessed against his land upon the sole
Under this rule appellant should be held for the assessment against his lands because (1) he knew the improvement was being made. (2) He knew there was no way by which the cost could be paid except by assessing his land. (3) He knew that no steps had been taken by the drainage commissioners to bring an additional assessment before the district court, and (4) it is conclusively shown by the record that his property was greatly benefited by the expenditure.
We shall not attempt a review of the numerous authorities sustaining the contention of respondents in such cases as the one at bar. While they are not unanimous in support of respondents’ position, we are of the opinion that the decided weight of authority is that way, and that it is supported by both reason and justice. The case of Erickson v. Cass County, 11 N. D. 494, 92 N. W. 841, was one in which 52 parties brought an action to enjoin the collection of assessments made against their lands for the construction of a drainage ditch. In denying the relief sought the court said: “The facts of this ease are such as to require a denial of this relief on purely equitable grounds. It appears that 27 of the plaintiffs signed .the petition which induced the location and construction of the drain. Five of them executed conveyances of the right of way for the drain, and were paid therefor. Two of them had a contract for constructing one-half mile of it. The drain is 10 miles in length, and its construction necessarily covered a considerable period of time, and, as we have seen, involved
In the case of Motz et al. v. City of Detroit et al., 18 Mich. 495, and 528, in denying the injunctive relief sought, Chief Justice Cooley said: “Both the contractors and the petitioners — all of whom are residents of the city — knew that, by the city charter, the city was not and could not be made liable for the cost of the work, but that the contractors must rely lipón the special assessment exclusively. There is no claim now on the part of these petitioners that- the assessment of the expense of the improvement is made on any different basis from that contemplated by them when the petition was signed. Under these circumstances they must be taken to have been willing and actively consenting parties to all the proceedings which led to the assessment, and to have impliedly, at least, consented that such an assessment should be made. Whether, therefore, the assessment is legally valid or not, there is not the least ground on their part for claiming the interposition of a court of equity by its extraordinary process of injunction to stay the collection of the assessment.”
The principle contended for by respondents is supported by many additional authorities, among which are the following: State v. Johnson, 111 Minn. 255, 126 N. W. 1074, 1075; Atwell v. Barnes, 109 Mich. 10, 66 N. W. 583; Fitzhugh v. City of Bay City, 109 Mich. 581, 67 N. W. 904;
It is noteworthy that in this case appellant has not claimed that his lands- are being unfairly assessed as compared with other lands of the district, nor that any fraud has been perpetrated by the commissioners in the handling of the funds of the district, nor- that his lands have not received the benefit that respondents claim them to have received. His action is brought to escape the entire assessment because of certain irregularities of which, according to the findings of the trial' court, he must have known before any considerable additional expense was incurred. He has obtained relief from the excessive amount of the assessments that the commissioners proposed to collect each year, which is all he is entitled to in this action.
The judgment of the district court is affirmed, with costs to respondents.