Rees v. Valley View Drainage District, 199 P. 178

Rees v. Valley View Drainage District

199 P. 178 | Or. | 1921

HARRIS, J.

The proceedings for the organization of the drainage district were conducted in conformity with Chapter 340, Laws of 1915, and amendatory acts which have been since codified as Sections 7247 to 7280, Or. L. There is no controversy about the legality of any step taken towards the formation of the district, except the sufficiency of the four disputed signatures attached to the petition for organization. Section 7247, Or. L., provides that the owners of 50 per cent of the acreage in any contiguous body of certain kinds of lands may prepare and sign a peti*73tion which shall contain ten specified statements and a prayer—

“asking that the lands described, or such of them as may be found by the court to be properly included in the proposed district, either permanently or until further investigation and surveys may permit elimination, shall be declared organized into a drainage district.”

The plaintiff contends and we shall assume that the petition is jurisdictional, and that therefore a petition not representing 50 per cent of the acreage does not confer jurisdiction to create a district.

The petition must be verified by one or more of the petitioners and filed in the office of the county clerk, and the County Court then fixes the time and place for the hearing of the petition. The county clerk causes a notice to be published in a newspaper: Section 7248, Or. L.

It is provided by the terms of Section 7249, Or. L., that—

“On or before the date set for the hearing, any person objecting to the organization and incorporation of said district may appear and file in writing his objection thereto, which objection shall set forth specifically and definitely his objections thereto.

“At the hearing the court shall hear and consider any evidence that may be presented for or against the petition or any objection thereto.

“Thereupon the court shall make its findings upon the facts alleged in the petition or objections and any other facts necessary and proper for the determination of the propriety of the organization of such district, which findings shall be entered on the journal of the court.'

“If it should appear to the court that the prayers of the petition should be granted, the court shall, by its order duly entered of record, declare and decree said drainage district organized. *

*74“In making such findings and decree, the court shall disregard any error, irregularity or omission which does not affect substantial rights, and no error, irregularity or omission which does not affect substantial rights shall affect the validity of the organization or any proceedings taken thereon.

“Appeal may be taken from the decision of said court to the Circuit Court in the s&me manner as appeals are taken in equity cases as by law provided. * * ”

From these sections of the Code it appears that opportunity is given for the filing of objections, and that when objections are filed the County Court is empowered to hear and consider any evidence that may be presented for or against the petition or any objections thereto. The County Court is not only empowered to hear and consider but it is also empowered to decide; and therefore when it does hear and consider and decide its decision becomes an adjudication. The petition is analogous to a complaint and the objections are analogous to an answer in a suit in equity or an action at law; and these pleadings raise an issue: Hanley Co. v. Harney Valley Irr. District, 93 Or. 78, 91 (180 Pac. 724, 182 Pac. 559). The identical issues raised in the instant suit were raised, heard, considered and decided in the County Court. The Whitney petition was not strictly speaking an objection to the formation of the drainage district; for the signers of that petition did no more than merely to-ask that the lands of the petitioners be excluded. One of the two papers filed by Mary J. Hallock was merely a protest against the inclusion of her lands within the district; but the other paper filed by her was an objection to the formation of any district, and among other reasons she assigned as reasons for her objections the same reasons which are now assigned *75by Rees in support of Ms claim that tbe Ingraham petition was not properly signed by tbe required number of owners. Although it appears from tbe record made in the County Court that tbe parties stipulated that tbe lands west of tbe Owyhee Ditch should be excluded, it does affirmatively appear that evidence was in truth beard with reference to tbe controversy about tbe four disputed signatures and the County Court decided that “tbe motion of Mary J. Hallo ck to dismiss tbe petition should be overruled and denied,” and tbe County Court further held that tbe Ingrabam petition was sufficient.

1. Tbe plaintiff says that this suit is a direct attack, while tbe defendants argue that it is a collateral attack. It will not be necessary to attempt to inquire whether this suit is a direct or a collateral attack upon tbe organization of tbe district, although prior precedents apparently furnish substantial support for the contention that tbe instant suit is a collateral attack: Tyree v. Crystal District Improvement Co., 64 Or. 251, 253 (126 Pac. 605); Splonskofsky v. Minto, 62 Or. 560, 571 (126 Pac. 15). If this is a collateral attack, then tbe plaintiff cannot in this suit question tbe order organizing tbe district, for tbe finding of tbe County Court constituted an adjudication of fact which cannot be inquired into in a collateral proceeding: Oliver v. Monona Co., 117 Iowa, 43, 48 (90 N. W. 510); People v. Reclamation District No. 136, 121 Cal. 522 (50 Pac. 1068, 53 Pac. 1085); 23 Cyc. 1088. But as previously stated we do not attempt to decide whether tbe instant suit is a direct or collateral attack, for in our view tbe plaintiff is in no position to maintain this suit.

2, 3. Tbe plaintiff was one of tbe petitioners and as such was responsible for the initiation of tbe proceed*76ing which upon his petition culminated in an order for which he then prayed and against which he now inveighs. Not one of the four owners has complained about the validity of the organization of the district; and the plaintiff cannot complain for them, for he is one of the petitioners upon whose prayer the County Court granted the very order for which he prayed, and therefore he is now estopped to object to the sufficiency of the petition after the County Court adjudicated the very facts which the plaintiff is seeking to readjudicate here. It must be remembered that this is a suit in equity, and it must be also remembered that the statute which permits the organization of drainage districts contains provisions for a contest and a hearing and a decision of the issues raised by the contest. But the plaintiff says that he signed the petition with the understanding and upon the condition that the district would include all the lands west of the Owyhee Ditch and that he did not have any knowledge of the exclusion of these lands until after the entry of the order organizing the district. The answer to this statement is that the statute contemplates that only such of the lands described in the petition as properly should be included in a drainage district shall be embraced in the order of organization. The County Court' is empowered to create a district out of the lands described in the petition “or such of them as may be found by the court to be properly included in the proposed district”; and, moreover, the prayer of the petition signed by the plaintiff is—

“that the lands described in said petition, or so much of them as shall be found by the court to be properly included shall be within said district as organized. * * ”

*77In addition to finding that the parties agreed that the lands west of the Owyhee Ditch should he excluded, the County Court found from the evidence that the lands of the objectors and all other lands lying west of the Owyhee Ditch—

“are high and dry lands, and are not wet, swamp or overflowed lands, and do not injure the lands of the petitioners; and the same should not be included within the proposed drainage district.”

Based upon the findings just mentioned the County Court decreed

“that the lands described in the petition and lying west of the Owyee Ditch should be excluded from the said drainage district.”

The plaintiff was bound to take notice of the statute which contemplates that the County Court shall exclude all acreage not properly belonging to the proposed drainage district and that no acreage shall be included in the order of organization except such acreage as properly belongs to the drainage district. Furthermore, in the petition signed by him the plaintiff expressly asks the County Court to create a drainage district out of “such of” the lands as the court might find to be properly included; and therefore the order actually made was strictly in conformity with the prayer of the plaintiff and the other petitioners.

A court of equity will decline to raise a restraining hand in a suit for an injunction brought by a person who stands in a position like the one occupied by the plaintiff. Fraud is not charged; nor is there any claim of fraud. Every act was done in good faith. The plaintiff is estopped to question the validity of the petition for the reason that he was in part responsible for the creation of the drainage district; and *78hence it is immaterial whether this suit is treated as a direct or as a collateral attack upon the order of the County Court organizing the district: Carr v. Boone, 108 Ind. 241 (9 N. E. 110); State ex rel. v. Taylor, 224 Mo. 393 (123 S. W. 892); Hackett v. State, 113 Ind. 532 (15 N. E. 799); Oliver v. Monona Co., 117 Iowa, 43 (90 N. W. 510); Northern P. R. Co. v. Pierce Co., 51 Wash. 12 (97 Pac. 1099, 23 L. R. A. (N. S.) 286); People ex rel. v. Seaman, 239 Ill. 611 (88 N. E. 212); note in 60 L. R. A. 247. See, also, Splonskofsky v. Minto, 62 Or. 560, 572 (126 Pac. 15); Hackett v. Brown, 128 Mich. 141 (87 N. W. 102).

The decree of the Circuit Court dismissing the suit is affirmed. Aeeirmed.

Benson, J., not sitting.