In re Yankton-Clay County Drainage Ditch, 160 N.W. 732

In re Yankton-Clay County Drainage Ditch

160 N.W. 732 | S.D. | 1916

GATE'S, J.

After the ’decision, of this court in Re Yankton-Clay County Drainage Ditch, 30 S. D. 79, 137 N. W. 608, and upon rehearing, 31 S. D. 496, 141 N. W. 393, the matter came before the joint hoards of Yankton and 'Olay counties upon the assessment of 'damages. The appellant herein, C. M. Snow, claimant, presartedi a claim for $7,000 damages to the southwest quarter of section 15, township 92, range 52, as follows, which said; land lies 80 rods south of the ditch as established:

“(1) Damage to said land in preventing the overflow waters from the Missouri and James rivers from passing off said- lands, because oif the embankments; thrown up. by the construction of said ditch and lateral's, which will dlam the waters 'back on said land, in the sum of $2,000. (2) Diminution of the value of the land -by reason of the construction of said drainage ditch and laterals thereto', in the sum; of $5,000.”

The joint boards allowed his claim in full. An appeal was taken to the circuit court of Olay county, wherein said claim was wholly disallowed. From the judgment and an order denying a new trial, claimant appeal's.

Broadly speaking, two-thirdis of the drainage area of this ditch lies north of the ditch and one-third to the south. It is the theory of appellant that the ditch will be so’ constructed' that the spoil blanks will be thrown up on the south side of the ditch, which will prevent the overflow waters from the Missouri and1 the James rivers from emptying into the ditch, ¡and thereby damage appellant more than he would' he damaged by overflow if there were no ditch, because 'the overflow would be restricted to one-third of its natural area.

[1] The learned trial court was of the opinion that it had no jurisdiction to. allow damages to land not traversed by the ditch, basing its decision presumably upon the provisions of section 5, c. 134, Laws 1907, as amended by section 3, c. 102, Laws 1909, viz.:

‘Tf they find the drainage proposed or any variation thereof conducive to the public health, 'convenience or welfare or necessary or practicable for draining agricultural lands they shall establish the drainage and 'shall assess the damages sustained by each tract of land or other property through which the ’ same *172shall pass and! the damages1 as compensation for the land taken 'for the route .of such drainage.”

On the other hand, the same section says:

“Any .person interested may !be heard in the matter of damages or compensation for land and the .determination of the board of county commissioners shall be final unless appeal therefrom as .prodded in this act shall be taken.”

And section 4, c. 134, Laws 1907, as amended by section 2, .c 102, Laws 1909, provides:

“Said notice shall summon, all persons affected by the proposed! drainage to appear at -said hearing and show cause why the said drainage should not be established 'and constructed and shall summon all persons 'deeming- themselves damaged 'by the proposed drainage or claiming compensation' for the lands proposed to be taken for the drainage to present their claims therefor -at said hearing.”

We are of the opinion that the restriction of damages to lands which the ditch traverses w'o'u-ld violate Const, art. 6, §§ 2, 13, because such restriction might result in depriving a person of lilis property without due process of law and might result in damage to his property without compensation. B'ut in so holding it must not be understood that the claimed damages can he fanciful, speculative, remote, or imaginary. Peoria & Pekin Un. Ry. Co. v. Peoria & Farmington Un. Ry. Co., 105 Ill. 110; Lewis, Eminent Domain (3d Ed.) pp. 56-65.

[2] In the present case the damages claimed were wholly imaginary, because it nowhere appeared that the embankment upon the south side of the ditch was to be continuous. As we understand the record, the specifications for the 'construction oif the ditch had not then been adopted'.. Following is a fair sample of the evidence sought to be introduced by claimant, with the objections and rulings Of the court thereon; however, iit must in fairness be stated that in some instance® the trial .court -sustained" objections solely on the ground hereinbefore adverted to-:

“Q. Mr. Finley, assuming that this ditch were to be constructed as planned, and the excavation of the dirt along 'its- f-ul-1 length would throw up- an .embankment of various heights-, varying from a few feet to 12 or 15 -feet, and assuming, again, that the Missouri and James rivers were to overflow their banks and *173flood waters come out on the south oif this ditch and flow north across this bottom in the direction of the ditch, what effect would thi's embankment have upon those ¡waters when they came in contact with the ¡bank? (Objected-to: First, on the ground that it does not appear that this witness is competent to testify in response to that question; and, second, it does not appear what kind of banks of earth -may be thrown up !on either side of this ditch, nor how many openings, or the size ¡of openings; that may be. left ¡in 'these banks, -nor ¡does' it appear what the height or the elevation- of land! either north or south of the line of the proposed drainage -ditch is, nloir does it appear what the shallowest parts of the ditch will be, and for the- further reason that -til* question relates to- matters that are purely imaginary or speculative, and are too- remote and ikmpp-re'ciable and too imaginative t-o be considered in any court, and for the further reason that the court in this proceeding cannot possibly award -dlamages to- Mr. Snow because his land is 80 rods distant from; the nearest point of the ditch, and the question is incompetent and irrelevant for every purpose. Objection sustained. 'Exception allowed.)”

[3] No court should assume that in preparing specifications for the construction of a ditch- the plain statute la,w is going to be violated. Section 18, -c. 134, Laws 1907, provides

“Any ditch, -dlrain or water -course which i-s n-ow or may hereafter ¡be constructed- so- as to- prevent the surface -and overflow water from ¡the adjacent 1-ancte from entering the same is hereby declared a nuisance and may be abated as such.”

The trial oo-urt could not therefore assume, nor can -this court assume, that the proper openings will not be made -in any embankment made -upon the -south side of this ditch- in order to allow surface and overflo-Wf waiters to- p-as's -into the ditch.

[4] We therefore ¡think -that the trial count arrived at a -right result, -although its reasons, or -a portion of its reasons, were erroneous. It is well settled ¡that an appellate count will not overturn ¡a light result, although the -reason therefor may be wrong.

The judgment -and order appealed froto are -therefore affirmed, but in order that no- possible injustice may 'be done to claimant, and -probably ou-t of excess -of. precaution-, it is ordered that such affirmance be without prejudice to -the right of claim*174ant to move to' reopen the judgment after the ditch is fully completed, and within one year from the time it is accepted by the joint boards.