102 Neb. 713 | Neb. | 1918
The defendant drainage district was organized under the act of 1907, Laws 1907, ch. 153 (Rev. St. 1913, secs. 1866-1901). The hoard of directors duly made an ap
The evidence shows without contradiction that it had become necessary for the district to make a further considerable expenditure of money, and the defendants contend that this work involved a change of plan or enlargement or extension of the work so that a reapportionment was necessary. This the plaintiff denied, and contends that “there was no change of plans, enlargement or extension of work from that originally adopted,” and also contends that where there is a necessary change of plans the board cannot reapportion benefits when the change in the plans and specifications will cause additional expense “more than 15 per cent, above the estimated - cost of the original planswithout such change and increased liability has been authorized, by an election, and no election has been held authorizing such proceedings.
It appears that the district board had not- applied to the state board of irrigation, highways and drainage for an approval of its plans for this additional work when this action was begun, but afterwards, while the
It is also contended that the decree of the trial court was entered by stipulation of the parties, and provided that the worlr might be proceeded with as approved by the' state board, and the further order that it should be paid for by assessment upon the original apportionment. The contention seems to be that there is no issue left as to the necessity of new plans or any change of plans. After the temporary injunction had been allowed in this case, the question was raised whether it should be continued until the case could finally be tried and determined. The defendants had made some change in their plans in accordance with the findings and order of the state board, and the trial court, in passing upon the question whether the temporary injunction should be continued in view of these changes in the plans, recited in its order that the parties had stipulated that the temporary injunction should be continued in force restraining the defendants “from making any reapportionment of the benefits for the purpose of levying assessments or raising money to pay for any improvements now contemplated as shown by the plans and specifications
In 1911 chapter 145 of the Laws of that year was enacted. Its purpose, as expressed in the title, was to amend one of the sections of the former act and to add other sections to the act. One of the sections added is section 44 (Rev. St. 1913, sec. 1914). It provided that the directors of the district should submit the plans, specifications and estimate of cost for the contemplated improvements to a vote of the electorate of the district, and then provided that “no changes in such plans and specifications shall be made thereafter by said board which shall cost in the aggregate more than 15 per cent, above said estimated costs.” In' this case the proposed change in the plans and specifications would involve a cost of more than 15 per cent, of the estimated cost of the first plans and specifications, and it is contended that, as these proposed changes were not submitted to a vote of the electorate, the board was
The plaintiffs insisted and introduced a considerable ■evidence of experts and others to show that the “proposed work, upon which is based appellants’ claim for a new apportionment,. is identical in purpose with the plans originally adopted and upon which the present apportionment is based.” The purpose of the original plans, and the purpose of the present plans, is to prevent the water from the rivers which adjoin the district and other waters from overflowing these lands, and to drain such lands as are, or may become, so wet as to need drainage. The plaintiffs’ evidence showed that this purpose was at all times, and still is, the general purpose of the improvement. The plans and specifications for these improvements, as they are now contemplated, have been approved by the state board. The district board has authority to proceed with the improvements according. to these plans and specifications. The question is whether “there is such a change of plans or enlargement or extension of the work-as to make a different apportionment necessary.” Rev. St. 1913, sec. 1879. The district borders for some distance .on the Elkhorn and Platte rivers. The water from these rivers has affected some of the tracts of land in the district much more than was anticipated when tho original apportionment of benefits was made. It has washed away and destroyed the major part of some of the tracts of land, so that it is now impossible that they should be benefited as it was anticipated that they
We have in this case only to determine whether any changes should be made in the apportionment of benefits. The question as to what changes should be made, and how the apportionment should be made, is not before the court, and should not be at all prejudiced by these proceedings The district board will
The judgment of the district court is reversed, and the cause dismissed.
Reversed and dismissed.