Seng v. Payne

Root, J.

This is an action to restrain the defendants from exercising an alleged right to enter upon the plaintiff’s land for the purpose of cleaning out a ditch. The defendants prevailed, and the plaintiff appeals.

In 3.882, the defendant Payne owned the northwest quarter of section 20, in township 9 north, of range 3, in York county, and one Hecht owned the west one-half of the northeast one-fourth of said section. Mr. Payne still owns his tract of land. The land in the northwest corner of said section is somewhat lower than the surrounding territory, so that before the ditch, hereinafter referred to, was constructed surface water after rainstorms would form a, pond covering about 100 acres at said point. To remedy that situation Messrs. Payne and Hecht and other OAvners of the land in that neighborhood petitioned the county commissioners to locate and construct a public ditch eastward across said northwest quarter and across the greater part of Mr. Hecht’s land so as to drain said pond. The commissioners located the ditch, and aAvarded a contract for its construction to Mr. Hecht and a Mr. Warren. These gentlemen dug the drain, and were paid for their labor out of the proceeds of a special assessment levied upon lands benefited by the improvement. So long as the ditch was kept open, it furnished an outlet for the surface waters that accumulated in said depression. At *815 the time this action was commenced, the ditch was partially filled, and in consequence after rainstorms the land near the corner of said section was submerged and the highways made impassable. By mesne conveyances the plaintiff, in 1903, became the owner of the Hecht land, and now asserts that the county commissioners did not have jurisdiction to construct the ditch, and he will not permit the defendants to repair said drain.

The plaintiff’s counsel argue that the jurisdictional facts essential to authorize the commissioners to locate the ditch do not exist. The alleged fatal defects will be considered, só far as may seem necessary, in the order in which they are referred to in counsel’s brief. Counsel contend that the petition filed with the commissioners does not contain an allegation that any of the signers own land to be affected by the proposed ditch. There is an allegation in the petition that the ditch will drain lands owned by the petitioners Payne, Warren, and Wilkes, and situated in definitely described sectións. The petition is sufficient.

The plaintiff complains that the bond required by section 4, art. I, cli. 89, Comp. St. 1909, was not given. A-bond conditioned that the makers thereof would “pay all cost that may occur in case the bord (board) of commissioners find against such improvement,” signed by two of the petitioners, was produced by the county clerk as part of the files of his office in the matter of the location of the ditch. It appears that the bond was filed, but beyond this fact there is no record that the undertaking was approved. We are of opinion, however, that at this late day, in view of the action of the board in locating and constructing the ditch, the bond should be held to have been approved by the board, and that, although the board could have demanded sureties not petitioners for the ditch, yet they were not compelled to do so, and the bond under the. circumstances of this case should be held sufficient. Asch v. Wiley, 16 Neb. 41 ; Bingham v. Shadle, 45 Neb. 82 .

Counsel further assert that the county board did not *816 upon actual view find the proposed improvement was necessary and conducive to the health, convenience and welfare of the community. The record discloses that two of the three commissioners inspected the route of the proposed ditch, reported that fact, and found that the “ditch is necessary for the benefit of the traveling public and conducive to the good health of the vicinity; that the rout (route) prayed for is the most practicable rout (route) for such a ditch.” The two commissioners constituted a quorum and could act in the absence of the other member. While the record does not show that the report was formally approved, we are of opinion that the conduct of the commissioners, in the light of all of the surrounding circumstances, warrants a conclusion that the report was treated by the board as a finding by it of the facts therein recited. If the record had been attacked in a direct proceeding by an interested person not responsible for the conduct of the board, it may be a court would have been justified in holding that the statutory findings had not been made by the board. But in the case at bar we think the subsequent conduct of Mr. Hecht justified the district court in sustaining the proceedings of the county board so far as Hecht and those in privity with him are concerned.

Finally, counsel say that notice was not given to Mr. Hecht. The statute provides that after the ditch is located the1 commissioners shall call to their aid an engineer, who shall go upon the line of the ditch as located by the commissioners, survey and level the drain, and apportion to each tract of land to be benefited by the improvement its proportion of earth to be excavated in the construction of the ditch, and shall also apportion the benefits to accrue to the several tracts of land and estimate the cost of the drain. After notice to the persons interested, the commissioners are authorized to equalize the assessments and levy them upon the tracts of land to be benefited by the improvement.

There is no proof that notice was served on Hecht, but *817 his land was not assessed. True, part of his land was taken for the path of the ditch, and there is no-proof that he was paid therefor, hut he applied for and was given the contract for constructing the drain, and after completing the work was fully paid therefor out of the assessments laid upon his neighbors’ farms. We are of opinion that Mr. Hecht, by his conduct, is estopped from objecting to the jurisdiction of the commissioners in the matter of locating the ditch. Callender v. Patterson, 66 Cal. 356 ; Roediger v. Drain Commissioner, 40 Mich. 745 ; Harwood v. Drain Commissioner, 51 Mich. 639 ; Rowe v. East Orange, 69 N. J. Law, 600; Prezinger v. Harness, 114 Ind. 491 .

In Dakota County v. Cheney, 22 Neb. 437 , it is held that a person desiring to object to the construction of a public ditch should act promptly in urging an objection thereto, and should not wait, with full knowledge of the situation, until the improvement is completed before attacking the authority of the commissioners to act in the premises. Darst v. Griffin, 31 Neb. 668 ; Gutschow v. Washington County, 74 Neb. 794 .

Before Mr. Seng purchased the land he inspected the farm and noticed the ditch, and it was apparent the drain had been constructed for the benefit of other tracts of land. If Mr. Seng had any doubt in his mind concerning his neighbors’ rights in the premises, he should have inquired. Having failed to do so, the plaintiff is charged with notice of those rights. Arterburn v. Beard, 86 Neb. 733 . The plaintiff’s counsel argue that the defendants do not mention an estoppel in their answer. The facts supporting an estoppel are pleaded, and the defendants should be given the benefit of any defense supported thereby, whether by way of estoppel or otherwise. City Nat. Bank v. Thomas, 46 Neb. 861 .

The plaintiff contends that, even though the county commissioners did locate and construct the ditch, they ' have no authority to repair it except upon a petition and according to the provisions of section 4 et seq., art. III, *818 ch. 89, Comp. St. 1909. The proceeding outlined in the statute, supra, refers to drains established under chapter 115, laws 1903 (Comp. St. 1903, ch. 89, art. III), whereas the commissioners of York county were proceeding under chapter 51, laws 1881, and amendments thereto (Comp. St. 1909, ch. 89, art. I). The act of 1881 did not provide for removing obstructions from a county ditch, but in 1891 the legislature amended section 25 of that act so as to provide that money in a county ditch fund might be used, among other things, to pay for “the removal of any obstructions that may accumulate in any portion of any ditch.” In our judgment the legislature by the amendment of 1891 intended to authorize county commissioners in their discretion to use money in the ditch fund to pay for removing obstructions from any public ditch constructed under the provisions of article I, ch. 89, Comp. St. 1909. In Hall v. State, 54 Neb. 280 , cited by the plaintiff, the warrant which formed the basis for the relator’s demand for a writ of mandamus was issued in 1889, and the opinion is correct as applied to the statute then in force.

Finally, the plaintiff urges that the allegations in the answer are insufficient to sustain that part of the decree giving the defendants affirmative relief. The defendants specifically prayed for the relief granted by the district court and the entire controversy between the parties was before it. The allegations in the petition and in the answer, taken together, present to the court the plaintiff’s contention that he may lawfully obstruct or obliterate the ditch in question and his denial of the defendants’ authority to repair the drain. The proof shows that the plaintiff has obstructed the ditch, and that he refuses to permit those in authority to remove such obstructions. The plaintiff has no right to do the things he.is enjoined from doing, and he is not deprived of any legal right by the judgment of the court.

A court of equity, having obtained jurisdiction of a cause, should retain it for all purposes, and render such *819 a decree as will protect the rights of the parties before it with respect to the subject matter of the suit, and thus avoid unnecessary litigation.

We find no error in the record, and the judgment of the district court is

Affirmed.