Seely v. Sebastian

| Or. | Sep 15, 1870

By the Court,

Boise, J.:

The statute says: “Any person whose land is so situated that it requires draining, and when any person or persons owning land adjacent thereto object to ditches being cut or dug on their land, may make application in writing to the County Court of his county, at a regular session thereof, for the right of way, etc., and privilege to cut a ditch,” etc. When this application is made, the County Commissioners’ Court shall appoint Commissioners to locate such ditch and assess the damages to the owners of the land through whose land the ditch is to be cut—but “in assessing such damages they shall take into consideration the benefit that such ditch will be to the aforesaid lands ” through which the ditch is to be cut.

This statute is intended to provide for cutting a ditch where there is none; the work is to be done by the petitioners to the County Court, and it is only in this matter that the Commissioners have jurisdiction. They have no jurisdiction to lay out a ditch over a ditch cut by an adjoining proprietor; and byway of damages, assess the compensation of the owner of the ditch, so appropriated, by tapping his ditch.

This compensation is provided for in the eighth section of the Act, and is distinct from the damages which the Commissioners are directed to assess for the cutting of a new ditch. We think this compensation named in § 8 is in the nature of a contribution, and is a proper matter for a suit in chancery, where all the parties interested in and using the ditch for their common benefit, may be made parties and compelled to pay their equitable share.

It has been insisted that this Act is unconstitutional, as it provides for taking private property for private use (and not for public). We think there is nothing in this point. By public use is meant for the use of many, or where the public is interested.

Suppose a large marsh is situated in such a manner that the miasma arising therefrom affects the public health of a large number of people. To provide for its drainage would be a matter of public concern, and could be regulated by law. So if draining of large swamps would add largely to the area of valuable lands in the State and increase its resources, it would be the proper subject of legislation; and it has been the practice of all States to legislate on this subject, and encourage the drainage of these lands, both as contributing to the public health and agricultural advancement of the country. They are often so situated that their redemption is impossible by private enterprise, and the State may then contribute to that end. Millions of acres of such lands have been redeemed in this country and in Europe at the expense of government, and we think there can be no question but what our Legislature has this authority, which has been sanctioned by the usage of the whole civilized world.

Judgment will be reversed and a new trial ordered.