239 Ill. 430 | Ill. | 1909
delivered the opinion of the court:
Appellants contend that the trial court erred in overruling the demurrer (i) because the petition does not contain sufficient allegations to entitle appellee to the writ; (2) because the action is barred by the five years Statute of Limitations; (3) because it appears from the face of the petition that appellee has been guilty of laches in beginning the suit and said petition contains no allegations explaining the delay; (4) because there is no sufficient allegation of a demand. It is also insisted that the judgment is indefinite and uncertain. The principal contention, and the one to which appellants’ brief and argument are chiefly devoted, is, that the petition is indefinite and uncertain; that the drainage commissioners have a discretion in the performance of their duties, and that in such cases mandamus will not lie.
The duties and responsibilities of the drainage commissioners are defined in and controlled by the provisions of the Farm Drainage act of 1885. The appellant drainage district was organized under the law as it existed at the time of its organization, in February, 1885. In that year the legislature passed an act declared to be “an amendatory revision and consolidation” of prior acts relating to the subject of farm drainage and repealing all former acts upon that subject. The act of 1885 did not take effect until July 1 of that year, but it contained the following provision (Laws of 1885, sec. 78, p. 107) : “All drainage districts heretofore organized under any one or more of the acts hereby repealed shall be held, and they are hereby declared to be legally organized, and the assessments made therein shall be held to be legally made. This act, as well as the acts repealed, shall be liberally construed to promote drainage, and the reclaiming of wet and overflowed lands, and in the making and collection of assessments and taxes therefor.' The officers, under the repealed act, and proceedings begun, shall be continued under this act, and shall have and possess all the rights, powers and privileges the same and to the same extent as though the whole proceedings were commenced and carried on under the provisions of this act, and only affected as to the future as herein provided.” Section 17 of the Farm Drainage act provides that “upon the organization of a drainage district, the commissioners shall go upon the land and determine upon a system of drainage, which shall provide main outlets of ample capacity for the waters of the district, having in view the future contingencies, as well as the present.” (Hurd’s Stat. 1908, p. 847.) Section 41 of the act provides: “After the completion of the work the commissioners shall thereafter keep the same in repair, and if they find by reason of error in locating or constructing the ditches, or any of them, or from any other causes the lands of the district are not drained or protected as contemplated, or some of them receive partial or no benefit, they shall use the corporate funds of the district to carry out the original purpose to the end that all the lands, so far as practicable, shall receive their proper and equal benefits as contemplated when the lands were classified.” If sufficient funds are not on hand for that purpose, authority is conferred by the same section upon the commissioners to make a new levy.
In Peotone Drainage District v. Adams, 163 Ill. 428, we held the provisions of the statute requiring drainage commissioners to provide outlets of ample capacity for the waters of the district were mandatory. Discussing the two sections of the statute referred to, we said, on page 430: “Where the land owners in the district have been assessed and taxed for the purpose of constructing drains or ditches of sufficient depth and capacity to drain their lands, they have a right to insist that the commissioners shall do what the statute says they shall do,—that is, determine upon or adopt a system of drainage which shall provide main outlets of ample capacity for the waters of the district. If a system or plan of drainage is adopted which will not afford outlets of sufficient capacity to drain the lands of the district the land owner will derive no benefit whatever from the taxation imposed upon him. This was never contemplated by the legislature. * * * Under the section of the statute supra, (sec. 41,) where an error has been committed, can the drainage commissioners shield themselves behind what they term a discretionary power and thus leave the land owner without any remedy whatever ? If they can, the law ought to be repealed at once, in order to prevent others from being imposed upon by its unjust provisions. But we think the statute gives a negative answer to the inquiry. The statute nowhere says that a discretion exists where a wrong has been committed on one of the land owners, but, on the other hand, it says they shall use the corporate funds of the district to carry out the original purpose, to the end that all lands shall recéive their proper benefits as contemplated when the lands were classified. Under these two sections of the statute we do not think any discretion is vested in the commissioners, but, on the other hand, the duty enjoined is imperative. It may be conceded that the drainag-e commissioners have a discretion in regard to the location of the drain and in regard to many of the details of the work, but this fact does not change the duty resting on the commissioners to provide sufficient outlets for the waters in the district.”
The allegations of the petition could not have been more certain and definite unless appellee had employed a civil engineer and caused a survey, plats and profiles to be made showing the exact increase in width and depth necessary to be made in order to provide outlets of ample capacity. This he was not obliged to do. The averments of the petition as to the lay of the land, the fall, and the cost of the work, showed it to be entirely practicable to so enlarge and deepen the ditches as to make their capacity ample to carry the waters of the district. The demurrer admitted these allegations to be true. The statute malees it the duty of the drainage commissioners to provide these outlets, and confers upon them power to determine the work necessaiy to be done for that purpose and to tax the lands benefited to pay for it. The law did not require of the appellee that he should at his own expense ascertain and inform the commissioners of the exact character and amount of work necessary to be done in order to give the ditches sufficient capacity to carry the waters, and furnish them plans and details for the work. The duty to provide such ditches is mandatory upon the commissioners, and ample power is conferred upon them by the statute for the performance of this duty. The petition in this case was as definite and certain as the petition in Kreiling v. Nortrup, 215 Ill. 195. The petition in that case was not demurred to but was treated as sufficient and the relief prayed awarded.
With reference to the.Statute of Limitations, it is only necessary to say that this is an action at law and is governed by the mies of pleading applicable to other actions at law. (Cleary v. Hoobler, 207 Ill. 97; Mayor of Roodhouse v. Briggs, 194 id. 435; Chicago Great Western Railway Co. v. People, 179 id. 441.) In such actions the Statute of Limitations cannot be availed of by demurrer but must be specially pleaded, so that the plaintiff may reply any special matter which prevents the bar attaching. Gunton v. Hughes, 181 Ill. 132; Wall v. Chesapeake and Ohio Railroad Co. 200 id. 66.
It is also to be noted that the petition avers that one of the lateral ditches across appellee’s land had been enlarged in 1905, thereby increasing the flow of water from the lands above, to and upon his land, and, because of lack of capacity of the main ditch to carry it off, the increased flow of water was caused to stand upon petitioner’s land. In addition to that allegation, the petition avers that the petitioner has often requested the drainage commissioners and their predecessors in office to deepen and widen said ditches so as to afford outlets of ample capacity, and we think there is no merit in the defense of laches.
Appellants contend that the averment that petitioner requested the drainage commissioners to deepen and enlarge the ditches is not a sufficient averment of a demand. We think otherwise. The averment of demand in the petition in Kreiling v. Nortrup, supra, was in identically the same language as the averment of demand in this case and it was treated as sufficient. From the answer filed in Peotone Drainage District v. Adams, supra, it would seem the allegation of demand in that case was the same as in this.
There is no merit in the claim that the judgment of the circuit court is uncertain and not sufficiently specific. It commands appellants to deepen and widen the ditches so as to provide an outlet of ample capacity to carry the waters off the appellee’s land. The allegations of the petition, admitted to be true by the demurrer, show this is entirely practicable, and it is precisely the duty imposed upon the commissioners by the statute. Under decisions above cited we have held the performance of -this duty may be compelled by mandamus, and we have also held that the commissioners are personally liable for intentional neglect to perform such duty. Binder v. Langhorst, 234 Ill. 583; Farm Drainage act, sec. 46.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
