Fargo v. Aaseth

1. Drainage .Proceedings — Appeal from County Commissioners— Constitutionality of> Statute. Laws 1909, Chap. 102, Sec. 9, amending Laws 1907, Chap. 134, Sec. 12, providing lor an appeal, upon any final order or determination of a hoard of .county commissioners establishing or denying proposed drainage, to the circuit court, by any one deeming himself aggrieved by. such order or determination, is constitutional, and authorizes an appeal to circuit court from an order of two boards of county commissioners of adjoining 'counties, denying a petition for a system of drainage; as does also the,general clause in the Pol. Code (Sec. 850). 2. Brains — Drainage System — Sufficiency of Evidence to Establish. In a .proceeding to establish a drainage system, evidence held to warrant a finding that the proposed system, involving lands !in two counties, would he of 'great benefit to the owners of property affected, and would result in substantial increase in Value of the land, and conducive to public health, convenience and welfare, and is necessary and practicable. 3. Evidence — “Public Documents” — Federal Drainage Investigation —Irrigation and Drainage. Pamphlets issued by the Department of Agriculture, published under direction of Congress, provided for by Appropriation Act of Congress, 33 Stat. 294, and by resolution of House of Representatives, 33 Stat. 590, relating to drainage investigations by federal 'Officers and applying to a system of drainage in Question, and printed, as appears on their face, by the government .printing office, in 1905, under authority of Office of Experiment Stations of Irrigation and Drainage Investigations, were admissible as “public documents,” under Code Civ. Proc., .Sec. 528, defining public documents and declaring them admissible in evidence. 4. Evidence — Judicial Notice — Acts and Resolutions of Congress. Courts take judicial notice .of the acts and resolutions of Congress, or of either house, without proof thereof. 5. Drainage Proceedings — Reception of Evidence on Appeal — Formal Offer in Evidence. Where an engineer’s report of survey of a proposed drainage ditch was before county commissioners when the matter was .heard by them, and on appeal to circuit court county auditor testified that all .records, etc., before the boards were by him turned over to clerk of court, whereupon counsel for one of petitioners stated he understood all' papers and procedings before county commissioners were before the court, and that it was unnecessary to formally offer them in evidence; the judge replying that if there was no objection it would be considered , ..that all papers and documents, pertaining to the .proceedings were before the court without being formally, introduced, the .same as they were before the boards; no objection to the ■statement of counsel or court .being ma,de; held, said report 'was properly regarded as before the court without formal offer •in evidence. . . 6. Drainage Proceedings — Gist of Proceedings — Cost of Laterals. In, .a proceeding to establish a drainage system, on appeal 'from order of county commissioners denying the petition, the igist of the matter presented to. circuit court for determination ■was whether the agricultural lands involved required, construction of drainage ditch between specified terminals, and, fif so, the line' on which the ditch should be constructed, and Whether same would be conducive to health of the community; hence, the court having found such facts in .affirmative, it was not essential to the validity of its order establishing the drain ¡that testimony' should also have been heard concerning the ■number and'expense of lateral drains required, and also' to ¡determine their dimensions and location. Whiting, J., and'McCoy, P. J., dissenting.

Appeal from Circuit Court, Yankton County. Hon. R. B. Turn?, Judge. Drainage proceedings by John O. Aaseth and others, to which James S-. Fargo and others filed objections, involving establishment of a drainage system over land® in Yankton and Clay counties. From a judgment of the. Circuit Court in favor of petitioners and'overruling objections and remonstrances previously sustained by -the Boards of County Commissioners of Yankton and Clay Counties, objectors Fargo and others1 appeal. The ist, 2nd and 25th assignments raise the question whether the location, and establishment of a drainage ditch is not so far legislative, administrative and ministerial, that the court is without jurisdiction to entertain an appeal. Our -conten-iton is that it is not a judicial nor even a quasi judicial question. In raising this point we are -fully aware that since this question was first argued in the lower court, the case in re Sorenson Drainage Ditch, 131 N. W., 300, has been decided by this -court, in which this was apparently held- to be a judicial question and hence appealable. We have taken the pains to examine not only the opinion of the court but the briefs of both appellant and respondent in that case. In doing so we find that this question was not argued by counsel for respondent, but was conceded to be a judicial question. Counsel expressly -state that they are not ready to- contend •that this appeal statute is unconstitutional, but say, “On the contrary, -we believe the statute constitutional and -that the courts have the power to -decide questions such as the statute permits to be taken into -court on appeal.” The government of -thi-s state is -divided into three divisions, executive, legislative and judicial. The United States Supreme' Court in a recent case, Interstate Commerce Commission v. Railway Company, 31 Supreme Court Reporter, p-. 393, following B. & O. Railway -Company v. U. S. ex rel. Pitcairn Coal Co., 215 U. S., 481, 54 L. Ed., 292, in an opinion- by Chief Justice White emphatically refused to interfere with- the finding® and decision of the Inter-state Commerce Commission, because such decision involved administrative and ministerial act's. Chief Justice Tripp, in Pierre Waterworks Company v. Hughes Co., 5 Dak., on p. 163, while holding that an appeal would lie from the action of the county commissioners as a board of equalization, utters this timely warning in regard to the státute allowing appeals from “all decisions” of the board of county commissioners. The'’court ©ays: “And it may well be questioned whether the legislature, in giving an appeal from all decisions of the board, intended to make the court a board of county commissioners, and on appeal to requite it to hear and determine matters of a political and administrative character, which appeal diréctly to the judgment and discretion of the commissioners. Such is not the province of courts.” Section 6 of article 21 of our constitution adopted in 1906, provides that the legislature “May provide for the organization of drainage districts for the drainage of land for any public use; and may vest the corporate authorities thereof, and the corporate authorities of counties, townships and municipalities with the power,” etc. We have examined the constitutions of many of the States and can find no such special provision' in any of them. We think no other State in the Union has such a special constitutional provision on the drainage question. The creation of a drainage district, hence a separate taxing district for drainage purposes, is a far different question than the question of whether a railway company should be compelled to build a road crossing, as was the issue in Board of Com. of Davison v. Railway Company, 127 N. W. 728. The court rightly said this question was not raised and could not be raised in that case. It is a far different question from that involved in Board v. Pierre Waterworks 'Co., supra. In neither of these cases was the board of county commissioners called upon to create a political subdivision of the county. Doubtless the case of Pelletier v. Ashton, 12 S. D., 366, 81 N. W., 73s, and Wickhem v. Alexandria, 122 N. W., 597 (S- D.), will be cited as they were in the court below, in which this court held, that the refusal of a city council to grant the petition for the exclusion of lands from the corporate limits of the city is appeal-able, iamd that this. court is committed to a line of reasoning that would hold the creation; of a drainage district to be a quasi judicial act. There is no express constitutional provision making the changing of boundaries of cities a legislative act as that quoted above in regard to drainage. The Supreme Court of many of the States 'hold statutes allowing the court’s jurisdiction in matters of the change of city boundaries constitutional, on the ground that the legislature dictates the facts upon which the change 'shall be made. The court then adjudges whether those facts exist. This is the holding in Iowa, Nebraska, California and a number of other States where the court has emphatically held that creation of a drainage district and the establishment and construction of drainage is a legislative and administrative act, and have drawn the distinction clearly between cases relating to city boundaries and cases relating to the ■construction of drainage. Tyson v. Washington County (Neb.) no N. W., 634; State v. Ross (Neb.) 118 N. W., 85; Denny v. Des Moines County (la.) 121 N. W., 1066; Norwalk St. Ry. Co., Appeal, 37 Atl., 1080; 38 Atl., 708; 39 D. R. A., 794; State v. Barker (la.), 116, 96; 89 N. W., 204; 37 D. R. A., 244. Our drainage law was largely borrowed from North Dakota and that State took it from Michigan. Martin v. Tyler, 4 N. D., 281, 60 N. W., 392; Michigan long prior to the ádoption of this statute by North Dakota, had held the location of a drainage ditch to be a legislative and administrative act, and that the court was without power to% review such act's. Houseman v. Kent Judge (Mich.), 25 N. W., 369; Clinton Township v. Teachoul (Mich.), in N. W., 1052. The statute of North Dakota grants no appeal from the question of the location and establishment of a drainage ditch, but the Supreme Court of that State, so far as it has expressed an opinion, has clearly indicated that such a provision would be void. Erickson v. Cass Co., 11 N. D., 494, 92 N. W., 841; Turnquist v. Commissioners, 11 N. D., 514; 92 N. W., 852; Alstad v. Sinn, N. D,, 109, N. W., 66; State v. Fish, 15 N. D., 219; 107 N. W., 191; Soliah v. Board, 17 N. W., 393. These States will be presumed to have adopted the construction of the State from which the law was taken. “The question of the practicability of a route to* be selected for a public ditch ife in the discretion of .the inferior tribunal or its officers and cannot be reviewed on appeal.” Sample v. Carroll, 132 Ind., 496; 32 N. E., 220. Whether a system of drainage is more comprehensive and ■costly than need be in order to drain petitioner’s land is a matter for the commissioners of drainage to determine, and' their determination is not reviewable 'by the court. Meranda v. Spurlin, ioo Inch, 380. “The commissioners in determining this preliminary question of the necessity of appropriating lands for the' purposes of a ditch, are called to the exercise of political and not judicial powers.” Zimmerman v. Canfield, 42 O. St., 463. The formation of reclamation districts is a legislative act and referable solely to the legislative department. Glide v. Superior Court (Cal.), 81 Pac., 227. Courts hold, and must continue to hold, that they cannot exercise other than judicial power. Champion v. Board of Min-nehaha Co., 5 Dak., 430; Pierre Waterworks Co. v. Hughes Co., 5 Dak.,ji45; Ill. Cent. Ry. Co. v. Chicago, 141 Ill., 586, 30 N. E., 1044, 17 E. R. A., 530; State v. Johnson, 61 Kan., 803, 60 Pa., 1068, 49 L- R. A., 665. Under drainage statute, Sec. 5, Chap. 102, Daws 1909, these are matters purely discretionary. The State constitution quoted above directs that the legislature shall provide that these discretionary powers shall be exercised by the “corporate authorities thereof and the corporate authorities of counties, townships and municipalities,” and the legislature has invested this power iin the board of county commissioners. Exhibits 15 and 16 consist of a pamphlet and map said to be issued by ¡the department of agriculture. It was not shown that this pamphlet came from the department of agriculture. We say that this pamphlet and map are not “public documents” within the meaning of section 528, Code of Civil Procedure, nor is it shown that this .pamphlet was published under the directions of congress, or either house thereof. At assignment of error 4, the defendants objected to the admission of Exhibits 4 and 5, being the report of the survey of the proposed ditch and to each of said exhibits. The trial in the Circuit Court was de novo, and it was necessary for the parties appealing from the order of the board of county commissioners to prove all facts' necessary to make ou¿ a case. These reports 'without ¡any evidence as to their accuracy ■certainly would not be competent testimony. The court held with ub ancl ruled that the question was one of identity merely, not of the accuracy or admissibility of the evidence. After making this ruling the count considered the evidence in making of his. findings. Outside of the exhibits there is no evidence to sustain the findings of the court. Mr. McDaniel, at page 75 of the record, says efficient drainage of this district cannot be had without the construction of twenty-five laterals. As to what these laterals would cost or where they would he located, as to what lands they would drain, as to what lands would be benefited by them the récord is absolutely silent. At finding- No. 8 the court says no evidence concerning laterals was introduced other than “the report of the Missouri Valley Engineering Company,” “The court makes no findings with reference to lateral drainage ditches or the necessity therefor,” but leaves this to the county commissioners. The report of the Missouri Valley Engineering Company was not admitted i=n evidence. By the judgment the commissioners were ordered to construct this main ditch; they were not directed to do anything farther. According to the evidence before the court this main ditch will not furnish efficient drainage. The court does not direct, and could not direct, the construction of any laterals, for the plaintiffs had1 neglected -to .place before the court. any evidence upon which the court -could act. Therefore, the court should have dismissed this proceeding upon the grounds that the plaintiffs had failed to establish a case. In re Nishnabotna River Improvement District No. 2, 123 N. W. 775 (la.); Zineer v. Board, 14 N. W. 51 (la.); In re Request Riv., 39 N. J. L-, 433; Reclamation Dist. No. 108 v. West, 129 Cal., 622, 62 Pac., 272; People v. Kingston, 65 N. Y. Sup., 590; State in rel M-cKuns v. Dist. Court, 90 Minn., 540, 97 N. W., 425; Guarantee Trust Co., v. Chicago, 162 Ill., 505, 44 N. E., 832; State v. City of Elizabeth, 40 N. J. L., 274; Farnha-m on Waters, p. 921. In re Park Ave. Sewer Appeal of Parker (Pa.) 32‘Atl. 574; Gilmore v. Hen-tig, 33 Kan. 156, 5 Pac. 781; Atchison v. Price, 45 Kan. 296, 25 Pac. 605. There is absolutely no evidence to sustain the judgment of the court, because no evidence was offered or received in reference to the location of the ditch, its course, size, grade, capacity, depth or slopes of the banks. We therefore insist that the engineer’s report is not in evidence, and that no evidence is in the record showing the accuracy of any engineering report. . Assignment , 2%, “Insufficiency of the .evidence to justify the judgment, in thi's, that no evidence -was offered showing the amount of land or what land would be benefited 'by the ditch, nor the. amount of such benefits, nor was any evidence offered showing the cost of construction, nor of the amount of damages that would be caused by the construction of such ditch, nor any evidence showing that the benefits would construct the ditch and pay the costs and damages. That the board of county commissioners have not at any time passed upon, such matters, and such matters were not before the court on appeal, and that such ditch can only be constructed out of the benefits and not by general taxation.” . • The State should in every instance provide that the cost must not exceed the benefits to result from the improvement. If no such statutory, provision is made expressly,, .it is implied. Farnarq on Waters, 209; Redrnon v. Chancey, 7 N. D., 233; 73 N. W... 1081; Martin v. Tyler, 4 N. D., 278; 60 N. W,, 392; 25 L. R. A., 838, and the cases cited by the court. at. the end of the opinion. In. re Nishnabotna River Improvement District No. 2, 123 N. W., 769, the Iowa court quotes this language in main from Village v. Baker, 172-U. S., 269, 43 L. Ed., 443, quoting also Zinser v. Board ■of Supervisors (la.), 114 N. W., 51. The general rule is that the expenses of the construction of a drain cannot be assessed against particular lands to an amount in excess of benefits. 14 Cyc., 1061. ’ IN REPLY. Respondents’ counsel, at f. 164, say, “There is nothing in this record showing or tending to show that the court in making its findings in any way used or based its findings upon these Exhibits 4 and 5, or upon any other exhibits constituting' report of the survey of the main line of the proposed ditch.” In this statement counsel must be mistaken. And we call attention to finding of the court number 6, reciting that said main drainage ■ditch as described in the report of said Missouri Valley Engineering company, will furnish a satisfactory outlet for such lateral drainage.” The report referred to were Exhibits 4 and 5. This is again referred to in the court’s conclusions, paragraph 1, record, p. 12. Again, the court- “orders and adjudges” that said Yankton-Clay county drainage ditch which is particularly referred to in the report of the survey thereof made by the Missouri Valley Engineering company and duly filed in the office of the county auditor of each of the counties of Yankton and Clay, be and the same is established as described in said report.” Record, p. 820. This court surely will not, unless compelled by settled and undoubted legal principles, hold unconstitutional the statute which gives the right of appeal to the courts to review the decision of the circuit court. We, of course, understand that the preceding argument only shows- that the right of appeal to the -courts -ought to exist in the class of cases to w-hi-ch the one under consideration belongs. The real question is, Does -it -exist? Or stated in- another way, Is Section 12, Chapter 134 of the Raws of 1907 as amended by Section 9, Chapter 102 Raws of 1909, unconstitutional in so far as it .purports to give the right of appeal from an order of a Board of County Commissioners establishing or denying a pro-, posed drainage -ditch? This statute, if constitutional, clearly -authorizes the appeal taken to the circuit court in the matter now -before this court. In re Sorenson Drainage Ditch, Appeal of Takings, 131 N. W. 300, (S. Dak.); Davison County v. C. M. & St. P. Ry. C-o., 127 N. W. 728; Pelletier v. City of Ashton, 12 S. D. 366. The validity of statutes involving the same principle has been affirmed in the following cases, citing Callen v. City of Junction City (Kans.) 23 Pac. 652, 7 R. R. A. 736; City -of Wahoo v. Dickinson, (Nebr.) 36 N. W. 813; Blanchard v. Bissell, 11 Ohio St. 96; City of Burlington v. Reebriclc, 43 1-owa 252; Monk v. Town of George, (Iowa) 53 N. W. 240.” Wickham v. City of Alexandria, South Dakota, 122 N. W. 597; Williams v. Turner Township, 15 S. D. 182; Section 1738, Rev. Pol. Code; State ex rel Jonaso-n v. Crosby, District Judge, et al, (Minn.) 99 N. W. 636; Spencer v. District Judge, 55 Minn. 278, 56 N. W. 1006; State v. Macdonald, 26 Minn. 445, 4 N. W. 1107; McGee v. County ComTs, 84 Minn. 474, 88 N. W. 6; Benne-tt v. Marion, (Io-wa) 76 N. W. 844; Hardy v. McKinney, (Ind.) 8 N. E. 232; Meehan v. Wiles, 93 Ind. 52; Bryan- v. Moore, 81 In-d. 9; Bis-eniu-s v. City of Randolph (Neb.) 118 N. W. 127; Young v. Salt Rake City (Utah). 67 Pac. 1066; 'City of Burlington v. Reebrick, 43 Iowa 252; Blanchard v. Bfesell, 11 Ohio St. 96; HJenrico County v. City of Richmond' (Va.) 55 S. E. 683; Wilson v. Tawley (Ind.) 42 N. E-. 362; Lancaster v. Reaman (Ky.) 52 S. W. 963; Rites v. Hand (Ind.) 1 N. E. 871, 4 N. E. 160; City of Wahoo v. Dickinson (Neb.) 36 N. W. 813; Incorporated Village of Fair-view v. Giffee, 76 N. E. 865, (Ohio). The last sentence of section 528, Code of Civil Procedure is as follows: “The term ‘public document’ is defined to be all the publications and maps- printed by order of -the legislative assembly, or Congress, or either house thereof; and all such documents are admissible in evidence.” In McCall v. U. S., 1 Dak. 307, it was held that all publications . of state papers, maps, charts and public documents when such publications are by authority of Congress. are as valid evidence as the originals from' which they were copied, and may be introduced and read as evidence on mere inspection. U. S'- v. Beebe, 1 Dak. 292. By the Agricultural Department appropriation act of April 23, 1904, found on page 294 of the statutes enacted by the Fifty-eighth Congress. On page 590 of the United States statutes enacted by the Fifty-eigth congress appears a resolution adopted by the senate and house of representatives, and approved April 27, 1904. At page 9 of the record, A. B. McDaniel testified that he had the government report prepared by Mr. Elliott with reference to this same ditch called the “Gayville Ditch.” He then testified that the map, Exhibit 16, had been detached from the book. He testified'as shown by the record on page 10 that the map was in the same condition as when it left the printing office except that a line had been drawn parallel to, and averaging about a mile north of the railroad line of the Chicago, Milwaukee & St. Paul Railroad, and a word written thereon since he received it from Mr. Elliott. ' From the acts of Congress referred to it appears that Congress authorized the printing of reports, bulletins and maps showing the result. The court would take judicial notice of all Acts of Congress and we 'think it committed no error in determining that Exhibits 15 and 16 were parts oí a public document, published by order of Congress and that-they were admissible in evidence. The next assignment of error- argued by appellants is Number 4. It relates to Exhibits 4 and 5, being parts of the report of the survey of the proposed ditch. At page_ 20 of the record, Mr. McDaniel testified that Exhibits- 4, 5, 6, 7, 8, 9, 10, n,-X2, 13 and 14, being the report of the survey of the proposed ditch, were before the County ■Commissioners at the time they had a hearing in the matter. -Exhibits 4 and 5 were in evidence. See testimony of D. F. Culbertson, the engineer in charge of the field work upon the survey, commencing on page 21 of the record. If this court has patience to read and -consider the evdence set out in the preceding pages, it will have no hesitation in saying that every fact necessary to be proven, to justify the establishing of the drainage ditch described in the surveyor’s report is amply sustained by the evidence, without reference to the statements of fact contained in the surveyor’s report. We can safely say that every fact stated in the report is proven by the books containing levels, which were introduced in evidence, and by the oral -evidence of Professor McDaniel, Mr. Culberts-on and others. Mr. El-liott’s map', Exhibit 16, also- is valuable as evidence, if this court shall hold that it was properly admitted. If not admissible, in the -opinion of this court, then we say that there -is other ample competent evidence -shown by the recqrd to sustain every finding of fact -made by the trial court. We particularly call the attention of this court to the evidence of D. E. Culbertson, found on pages 723 to 728 of the record, wherein he gives the levels on the surface of 'the ground along- the proposed ditch, from the east bank of -the Gayville Slough to the comity line between Yankton and Clay Counties at each 100 foot station, commencing at Station 169. Now assuming that Elliott’s map, Exhibit 16, was properly admitted in evidence, let us see what it shows. Elevations are shown- at every section and. quarter section corner on north and south section lines, two miles apart. The testimony of Dr. Gyllienhammar, on pages of the record from 159 to 167, shows that this drainage would be -conducive to public ¡health and welfare. The testimony of Ch-arles Shepa-rdson a witness for those opposing the ditch, on -pages 542 to- 555 of the record, shows that he had typhoid fever while living along the Gayville Slough. Assignments 20 and 22 -are discussed together. Defendants’ counsel claim- that after -the court had assumed jurisdiction to try the case it shoul-di ¡have determined the question of the necessity of laterals .and the number and location- of the sa-me, at the same time it determined the questions relating to the main line of the drainage ditch. The court evidently was of the opinion that the evidence before it was not sufficient to justify a decision with reference to the twenty-five lateral -ditches referred to- in' the testimony of Professor McDaniel. There is some evidence in the record outside of the surveyor’s report relating to these laterals but the same were not described to any great extent in -the testimony. The petition for the drainage ditch -only -asks that the main ditch be constructed. In finding of fact Number 8 -the- court says: “The court makes no findings with reference to lateral drainage ditches or the necessity therefor, but 1-eaves the determination of all questions with reference to later draináge ditches to the Boards of County Commissioners of Yankton and Clay Counties.” And in the judgment of the court it is stated: “The question of the necessity of lateral drainage ditches and the number thereof, if -any, that may be necessary to effectually -drain the land tri-b-utarly to said -drainage ditch so established, is mo-t passed upon- or determined by the court, but the same is left for consideration by the Boards of County Commissioners.” It certainly could not be error for the -court to decide that the •main drainage ditch should be established and to- find as a fact that it would furnish an outlet sufficient for all lateral drainage ditches necessary to properly and adequately drain the entire •drainage district, without at the sanie time determining and directing that a certain number of lateral ditches should be constructed. The matter of lateral ditches might well be left for the determination of the Boards of County Commissioners-, and it is to be presumed -that the Board-s of County Commissioners, if -the judgment of -the trial court shall be sustained, will a-t once take up- the matter of lateral ditches and will determine how many there should be and where they should be located. It is to be presumed that if the judgment of the trial court shall be affirmed, the boards will exercise their own judgment in determining what lateral ditches ought to be constructed, that they will do whatever their honest judgment determines ought to be done to make the drainage effective. It is true that lateral ditches should be designed and' provided for before ¡any asessment is made against the land to defray the cost of constructing the main ditch. We realize that a-s fully and as completely as do the counsel representing defendants in this case, but the question here is whether the trial court as a matter of law had the right to determine and direct that the main line of the proposed drain should be constructed without passing upon the question of laterals. It was the duty of the Board of County Commissioners to determine whether the proposed ditch would be conductive to the public health, convenience and welfare, and whether it would be practicable for draining agricultural lands. If the county commissioners ought to have established the ditch then the court ought to have established it provided it found that the proposed drainage ditch would be conducive to the public health, convenience or welfare, or that it was needed or practicable for the purpose of draining agricultural lands. Cases cited by us on the first law question discussed in this brief clearly show that the court committed no error such as is complained of by defendants by assignment Number 26. Assignment Number 27 is to the effect -that no evidence was offered showing the amount of land or what land would be benefited by the ditch, nor the amount of such benefits, nor was any evidence offered showing the cost of construction, nor amount of damages that would be caused by the construction- of the ditch. It is true that the question of damages was not touched upon during the trial and it was not necessary that it should-' be. It is not true that there is no evidence showing the amounj: of land ,or what land would be benefited by the ditch. It is- true that there is no evidence showing the amount of benefits to each particular tract of land, and under the drainage law, this matter never can be shown until the Board of County Commissioners is called- upon to make an assessment of benefits with a view to raising money for the purpose of paying the cost of the drainage. There can be no contention that the cost of this drainage would exceed the benefits. An estimate of the cost of the entire drainage from1 the county 'line east to Vermillion river is shown by the surveyor’s report, Exhibit 32, and from the estimates there given the court could easily determine that the cost of constructing the ditch from its starting point to the Clay county line would be very much less than the benefits, but this is not all the evidence on the subject in the record. Mr. Elliott as before shown, states on page 666 of Exhibit 15 as follows: “It will be noted from the estimates given that while the aggregate expense is large the amount per acre when distributed over the whole area is small.” This is sufficient to show that the cost of drainage is not so great as to prevent the construction .of the same.