237 Ill. 340 | Ill. | 1908
delivered the opinion of the court:
The conclusion of the judge of the circuit court was that the drainage district in question was legally organized under the provisions of section 151 of chapter 42, Hurd’s Revised Statutes of 1905, which reads as follows: “Where two or more parties owning adjoining lands which require a system of combined drainage, have by voluntary action constructed ditches which form a continuous line, or line and branches, the several parties shall be liable for their just proportion of such repairs and improvements as may be needed therefor, the amount to be determined as near as may be on the same principle as if these ditches were in an organized district. Whenever such repairs and improvements are not made, by voluntary agreement, any one or more owning parts of such ditch shall be competent to petition for the formation of a drainage district to include the lands interested in maintaining these ditches. The petitioner or petitioners for the formation of such district must show to the satisfaction of the court that his or their land is damaged through the lack of proper repairs or improvements to said ditch or drain. The form of procedure and the conditions heretofore prescribed in this act shall be observed as near as practicable; but.the ditches shall be taken as a dedication of the right of way, and their construction and joining as the consent of the several parties to be united in a drainage district. These ditches, if open, shall be made tile drains when practicable.”
It is first objected to the validity of the organization that the section set out does not authorize the formation of a drainage district upon the petition of one or more parties owning parts of a ditch and branches, where, as here, the principal ditch is in the highway, where that ditch was originally constructed by the highway commissioners and where the owners of lands adjoining the highway have merely drained their lands into the ditch in the highway. The portion of the ditch which was in the highway not only afforded a passageway for waters flowing off the adjoining lands but also drained the highway, and we think that the commissioners of highways, in their corporate capacity and as representatives of the public, within the meaning of this section are to be regarded as the owners of land. The public has a perpetual easement in the highway, and that easement is a freehold. (Perry v. Bozarth, 198 Ill. 328.) In the case of Young v. Commissioners of Highways, 134 Ill. 569, this court held that where commissioners of highways undertake to drain a public highway they possess the same rights and are to be governed by the same rules as adjoining land owners who may undertake to drain their own lands, excepting, however, cases in which the commissioners may proceed under the Eminent Domain law of the State. While that case is entirely dissimilar to this in its facts, we yet think the law as there stated places the public highway and the commissioners of highways in the same category with, and makes them bear the same burdens as, other lands and other land owners, so far as the laws pertaining to drainage are concerned. The situation here is precisely the same as though the lands in the highway were owned by private persons without the burden of the easement.
In 1903, with money furnished by subscription by certain land owners, the highway commissioners deepened the ditch in the highway. Certain owners whose lands drained into the ditch paid nothing toward the expense of this work. These lands are now within the district in accordance with the prayer of the petition for the organization of the drainage district. It is insisted that these owners are not, within the statute, parties who have by voluntary action constructed ditches which form a continuous line or line and branches, because they took no part in the deepening of the ditch; that no parties can be regarded as having constructed or helped to construct the system of drainage as it existed when the petition for the organization of the drainage district was filed, except those who contributed to the deepening of the highway ditch in 1903. This position seems to us untenable. Before the ditch was made deeper, these owners who subscribed nothing to the expense of that work were the owners of lands which, with other lands involved in this suit, required a system of .combined drainage,—that is, an outlet was required for all the waters flowing off these lands and a common outlet was found through this ditch in the highway. The deepening of the ditch left the system of combined drainage in existence. It is not denied that the lands of each of these persons who did not help pay for the work in 1903 drained into the ditch both before and after the work of deepening was done. Under these circumstances it seems clear that these lands might properly be included in the petition for the organization of the district, even though the owners thereof contributed nothing toward improving the main ditch in 1903.
It is also complained that certain lands, the owners of which contributed toward the improvement of 1903, were not included in the petition for the organization of the district nor in the district when it was organized. This is not fatal to the organization. Barnes v. Drainage Comrs. 221 Ill. 627.
We have thus disposed of all questions presented by appellants. The order of the circuit court will be affirmed.
Order affirmed.