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in other words, not necessary to supplement proof of the fact that the drainage of a marsh or pond will conduce to public health or welfare by evidence of the number of persons who will be benefited. It is necessary, however, in order to authorize the levying of an assessment, to show that the land-owner will receive a special benefit. Lipes v. Hand, 104 Ind. 503, 1 N. E. Rep. 871, and 4 N. E. Rep. 160.

16 N. E. Rep. 192; Slaughter-House Cases, | Ford, 110 Ind. 89-93, 10 N. E. Rep. 648. 16 Wall. 36; Civil Rights Cases, 109 U. S. 3, Whenever the reclamation or drainage of wet 3 Sup. Ct. Rep. 18; Smith v. Alabama, 124 lands will promote health, there is a constiU. S. 465, 8 Sup. Ct. Rep. 564; Railway Co. tutional warrant for levying assessments to v. State, 128 U. S. 96, 9 Sup. Ct. Rep. 28. pay the expense of the drainage of such The removal of causes that produce disease lands, and, from the very fact that it will acand serious discomfort does promote the complish this result, assessments may be auhealth and welfare of the public, and in en-thorized without proving what particular acting a law providing for the removal of citizens will be beneficially affected. It is, such causes no provision of the constitution is violated in compelling private persons who receive a special benefit to bear the expense. On the contrary, in enacting such laws a high constitutional duty is discharged, and no private rights are invaded where special benefits accrue, although the expense is imposed upon the property of the citizens. In speaking of the police power, Judge Cooley says: "Laws imposing on the owners the duty of draining large tracts of land, which in their natural condition are unproductive, and are a source of danger to health, may be enacted under the same power, though in general the taxing power is employed for the purpose; and sometimes land is appropriated under the eminent domain." Cooley, Const. Lim. (5th Ed.) 734. A clear and vigorous statement of the law upon this subject is found in the case of Donnelly v. Decker, 58 Wis. 461, 17 N. W. Rep. 389. "It would seem to be most reasonable," said the court in that case, "that the owner of the land drained and reclaimed should be assessed to the full extent, at least, of his special benefits; for he has received an exact equivalent and a full pecuniary consideration therefor, and that which is in excess of such benefits should be paid on the ground that it was his duty to remove such an obvious cause of malarial disease, and prevent a public nuisance. The duty of one owner of such lands is the duty of all, and in order to effectually enter upon and carry out any feasible system of drainage, through the infected district, all such owners may be properly grouped together to bear the general assessment for the entire cost proportionally. Assessment in similar cases is not taxation." Mr. Tiedman, in speaking of legislation compelling private property to bear the expense of drainage, says: "The constitutionality of such legislation has, as a reasonable exercise of the police power of the state, been generally sustained on the general ground that the state may impose upon the owner the duty of draining his lowlands, in consideration of the consequent increase in the value of his lands."

Tied. Lim. 445. As the drainage act is constitutional, because a valid exercise of the police power, and as the exercise of that power in itself implies that the purpose for which an assessment is directed is for the public good, the purpose is necessarily a pubAs the purpose is necessarily public in all cases where health, comfort, and convenience are promoted, there can remain in such cases no other questions than such as relate to the procedure, and the amount of the benefits or damages assessed. Ford v.

But it is one thing to be compelled to prove special benefits in order to justify special ass ssments, and quite another thing to be compelled to show who or what numbers will be benefited in health or comfort by a system of drainage. We neither hold, nor mean to hold, that benefit to the property of an individual will warrant an assessment; for if the benefit is solely to private property irrespective of general or public considerations, no compulsory assessment would be valid, since one citizen cannot be compelled to contribute to the improvement of another's property. If, however, it can be justly concluded from the nature of the system of drainage adopted that there will be a material element of public good in the result, then the purpose is a public one, and property may be assessed. Nor would it change the conclusion if a pond or marsh was wholly on the land of one of the citizens; for although he may be compelled to bear the greater part of the expense, or, indeed, the entire cost, it would be for the reason that his property received the principal benefit, and not because it was his duty to drain the pond or marsh. Of course, if the property of such an owner received the whole of the special benefit, and no public purpose was subserved, it must bear the entire expense; but it is difficult to conceive a case in which this could happen, for the removal of a cause of disease or discomfort must necessarily benefit, in some degree, property in the vicinity. Where the element of public good exists, there is authority to levy an assessment, but it is otherwise where there is no such element in the case. If the property owner was bound to remove from his land causes of disease placed there by nature, it might well be held that he must bear the entire burden; but he owes no such duty to the community, nor is he liable to any one for injury arising from such a cause. An owner of land is responsible for injuries resulting from the construction of artificial swamps or ponds, but, independently of statutory regulation, he is under no duty to drain natural ponds or marshes at his own expense, although he may be compelled to pay the entire benefit which accrues to his

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property. Reeves v. Treasurer, 8 Ohio St. cannot be reviewed or controlled by the 333. In view of the findings of the jury, we courts. Weaver v. Templin, 113 Ind. 298, cannot hold that the construction will not be 14 N. E. Rep. 600, and cases cited; Kirkpatconducive to public health, comfort, and rick v. Taylor, 118 Ind. 329, 21 N. E. Rep. convenience. Blizzard v. Riley, 83 Ind. 20. In Ford v. Ford, supra, it was said: 300; Kyle v. Miller, 108 Ind. 90, 8 N. E. "We find in the record of the trial in the cirRep. 721; Meranda v. Spurlin, 100 Ind. 383; cuit court the following admission: The Ford v. Ford, 110 Ind. 92, 10 N. E. Rep. ditch in controversy proposed to be construct648. We must take the judgment of the ed will be conducive to public health, conjury upon the facts, and the only question venience, and welfare. The route of said which we are required to decide upon this ditch, as proposed, is practicable, and the branch of the case is whether the facts are ditch proposed, if constructed, would be the sufficient to entitle the appellees to a judg- best route for a ditch to drain the lands of ment declaring the work to be conducive to said Callender Ford, and would thoroughly the public health and welfare. We are not drain and dry the same.' With this admisat liberty to draw inferences of an eviden- sion in the record, there remained no controtiary character, for the facts found in the verted question of fact for trial, except verdict are, as said in Locke v. Bank, 66 Ind. whether the assessment made against Callen353, "the inferential facts." The conclu- der Ford's land was in proportion to the bensions of the jury are conclusions of fact efits to be derived therefrom." So it is here. drawn from evidentiary facts, and these con- The ditch, as the record shows, will be conclusions of fact, and not the evidence, are the ducive to the public health, convenience, and proper elements of a verdict. Blizzard v. welfare, and therefore there is, as we have Riley, supra; Hagaman v. Moore, 84 Ind. said, but one question for trial. We have 496; Bennett v. Meehan, 83 Ind. 566. looked into the cases in other courts, and The facts which appear in the verdict bring find many sustaining the rulings in our own. the case within the rule declared in Heick v. Hunter v. Newport, 5 R. I. 325; Railroad Voight, 110 Ind. 279, 11 N. E. Rep. 306, Co. v. Benham, 28 Mich. 459; Dingley v. where it was said: "That the work will City of Boston, 100 Mass. 544; Aken v. Pareither promote the public health or improve frey, 35 Wis. 249. In the case last cited, it a public highway or be of public utility is to is held that a verdict need not refer to matbe regarded as a legislative declaration that ters which the statute does not require the. it is of such a public character as to justify jury to decide, but, if it does, the finding on the exercise of the power of eminent domain such a point will be treated as surplusage, to the extent required in its accomplishment." and will not vitiate the verdict. Where, It was also said that "it follows, necessarily, however, the verdict does find upon matters that if the finding be such as to affirm either which it is made the duty of the jury to pass of the propositions above stated, the construc- upon, the finding cannot be disregarded by tion of the drain is to be deemed a work of the court. Reservoir Co. v. Dominguez, 50 such a public character as to warrant its Cal. 505. The jury did decide all the quesprosecution in the manner provided by law." tions presented by the remonstrance, and Whether it is practicable or expedient to con- properly before them, and the court did right struct a ditch upon the route proposed is a in following the verdict in its judgment upmatter to be determined by the officers to on the points which we have discussed. The whom the authority to locate ditches is in-appellant brings before us questions which trusted. In Heick v. Voight, supra, it was said: "Whether the project was more comprehensive, or whether it embraced and affected more lands than was necessary in order to accomplish the drainage of the petitioner's lands in the cheapest and best manner, was a subject for the exclusive judgment of the commissioners of drainage. Their determination of that subject was not reviewable by the court." "In this regard," said the court in Anderson v. Baker, 98 Ind. 587, "the decision of the commissioners of drainage is analogous to the decision of the common councils of cities upon the question of benefits from the construction of sewers; it is final in each particular proceeding, in the absence of fraud." The same doctrine was explictly asserted in Meranda v. Spurlin, 100 Ind. 380, and in Markley v. Rudy, 115 Ind. 533, 18 N. E. Rep. 50. The rule declared in these cases is no more than the proper application of the general principle, asserted in a great number of cases, that, where a discre*jon is conferred upon local authorities, it v.22N.E.no.22--50

affect only his rights, and we can consider no others. If the proceedings are effectual against the attacking or objecting party, they will be upheld. We cannot, therefore, consider what other parties, if any, are affected by the proceedings. The circuit court may, in the proper case, remand a drainage case to the board of commissioners for further proceedings, and this is such a case. Sunier v. Miller, 105 Ind. 393, 4 N. E. Rep. 867; Bryan v. Moore, 81 Ind. 14. We cannot hold that the court erred in refusing to include costs made by the remonstrant in the cost of constructing the ditch. Board v. Fullen, 118 Ind. 158, 20 N. E. Rep. 771. Nor do we think that the court erred in denying the appellant's motion to tax all costs of appeal against the appellees, for they succeeded on many of the issues. In the absence of the evidence, we cannot say that there was any error in assessing benefits and damages. The verdict shows that there was a benefit, and this controls; for we cannot, on the face of the verdict, adjudge that there

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MITCHELL, J., did not participate in the decision of this case.

was no benefit, and we have no data to lows: "Whenever, in pursuance of legal noguide us, except such as the verdict supplies. tice or otherwise, any landlord, or his legal It was not necessary for the jury to specific- representative, shall be entitled to possession ally describe the tract of land which the ditch of lands, he may, by himself or his agent, would drain. The assessment is laid upon have any tenant who shall unlawfully hold the land benefited, and not merely upon the over removed from such lands, on complaint land actually drained; for the benefit may before a justice of the peace of the county in extend beyond the specific parcel which is which such lands lie, specifying the matters reclaimed. Baker v. Clem, 102 Ind. 114. relied on to justify such removal, and the The land on which the assessment is levied damages claimed for detention, describing should be described with reasonable certain- the premises with reasonable certainty." By ty, but this is all that is required. Boatman the ancient common law of England, it was v. Macy, 82 Ind. 490. There is, however, allowable to every person who was the owner no such description of the appellant's land as of lands or tenements, of which he was diswill authorize an assessment, and for this seised, to regain possession by force, and reason the verdict cannot be sustained. The without the aid of the law. "But, this being finding is that six acres of appellant's land found very prejudicial to the public peace, it will be benefited, but what six acres will be was thought necessary by several statutes to benefited is not stated. Judgment reversed. restrain all persons from the use of such violent methods, even of doing themselves justice, and much more if they have no justice in their claim, so that the entry now allowed by law is a peaceable one; that forbidden is such as is carrried on and maintained with force, with violence, and unusual weapons." 4 Bl. Comm. 148; Judy v. Citizen, 101 Ind. 18. out of possession by one who has no legal or The owner of land who is wrongfully held equitable right may embrace the opportunity and gain peaceable possession, if he can; but, unless he can obtain possession without force or show of violence, his sole remedy is to invoke the aid of legal procedure. To that end a special statutory proceeding has been provided, whereby a landlord who is entitled to the possession may have a tenant who unlawfully holds over removed. The same statute also provides that a tenant who has been evicted by force may have the possession restored to him, even against a landlord who might have had him removed by legal procedure, on complaint by him made, in the same manner as provided in case of tenants holding over. Section 5237; Judy v. Citizen, supra. "The common law affords no civil

(122 Ind. 1)

SCOTT et al. v. WILLIS. 1 (Supreme Court of Indiana. Nov. 20, 1889.) LANDLORD AND TENANT-RECOVERY OF POSSESSION

-JUSTICE OF THE PEACE.

1. An action under Rev. St. Ind. 1881, § 5225, which provides that where a landlord, in pursu ance of legal notice or otherwise, is entitled to the possession of land, he may have the tenant unlawfully holding over removed therefrom on complaint before a justice of the peace of the county wherein the lands are situated, may be brought before any justice of the peace in the county, and not necessarily before the justice of the particular township

where the lands are situated.

2. Where a lease of a mill provides that the lease shall terminate if the machinery breaks down, the happening of that contingency terminates the lease at once, and no notice to quit is necessary. Appeal from circuit court, Montgomery county; E. C. SNYDER, Judge.

Action brought by Abner D. Willis against James Scott and others to obtain possession of certain real estate leased by plaintiff to defendants. Judgment was rendered for plain-remedy against a person who, having a right, tiff, and defendants appeal.

Kennedy & Kennedy and J. P. Green, for appellants. M. E. Clodfelter, for appellee.

enters forcibly, (Taunton v. Costar, 7 Term. R. 431;) but the injured party must appeal to the statutory action of forcible entry and detainer," (Fuhr v. Dean, 26 Mo. 116, 69 MITCHELL, J. This suit was commenced Amer. Dec. 485; Moyer v. Gordon, 113 Ind. before a justice of the peace, to recover pos- 282, 14 N. E. Rep. 476.) As it was the policy session of certain real estate. The plaintiff of the statute to compel landlords to resort to alleged that he had leased a grist-mill and the law in order to obtain possession of lands privileges to the defendants, and that, accord- to which they were entitled, so it plainly aping to the terms of the lease, the tenancy had pears that the possession might be obtained expired, and that he was entitled to the posses-on complaint before any justice of the peace sion, but that the defendants unlawfully and of the county in which the lands were situforcibly held over, and refused to surrender.ate. In like manner, if the possession of the Substantially, the only question presented is whether or not, in actions like the present, the jurisdiction of justices of the peace is coextensive, territorially, with the county, or whether such action must be brought before some justice either in the township where the defendant resides or in the township where the real estate is situate. The question depends upon the meaning attributable to section 5225, Rev. St. 1881, which reads as fol

1 Rehearing denied.

tenant was forcibly intruded upon, he might have redress on complaint filed before any justice of the county. This is the plain reading of the statute, and there is no reason for construction. Upon the same principle that it was held that in actions like the present the jurisdiction of justices is unlimited as to the amount involved, it must also be held that their jurisdiction is unlimited territorially, ex-. cept by the bounds of the county. Sturgeon

v. Hitchens, 22 Ind. 107. The actions for mandamus to compel the auditor of public trespass to real estate referred to in section accounts to register certain bonds. The au1443 are suits of an entirely different charac-ditor answered the petition, and the quester from those provided for in the statutes to tions involved in the case arise upon a dewhich reference has already been made. murrer to his answer. While a tenant who unlawfully holds over may be, technically, a trespasser, and liable as such, the special statutory proceeding provided for his removal is not an action for trespass to real estate. As was remarked in Moyer v. Gordon, supra, "the distinction between an action for trespass upon real estate, and to recover damages resulting therefrom, and for a restitution of possession and damages, under the forcible entry and detainer statute, is plain and broad."

It was provided in the lease that in case the mill broke down the tenancy should terminate at once. The court instructed the jury, substantially, that when, by the terms of the agreement between a landlord and tenant, the lease is to terminate upon the happening of something that may occur in the future, the happening of the contingency terminates the tenancy, and no notice to quit is necessary; that the breaking down of the mill was such a contingency; and that, if the mill had in fact broken down, the tenancy terminated and no notice to quit was necessary. This was a correct statement of the law. The agreement that the tenancy should expire in case the mill broke down so that it could not be operated, created a contingent limitation of the term, and when the contingency happened the tenant was bound to take notice of it, and surrender the possession. Clark v. Rhoads, 79 Ind. 342; Hoffman v. McCollum, 93 Ind. 326. There is no error in the record. Judgment affirmed, with costs.

(130 I11. 608)

The facts of the case appear in the petition and answer, and, so far as they are material to a consideration of the questions that arise in this controversy, may be briefly stated. The "Lake Fork Special Drainage District in the Counties of Piatt, Champaign, and Douglas, and State of Illinois," was duly organized in 1882, under the drainage act approved May 29, 1879, and in force July 1, 1879, and the several acts amendatory thereof. The drainage commission of said special drainage district, after the location, construction, and completion of a main drain or outlet to carry off the waters of said district, divided the district into 31 subdistricts, and bered them from 1 to 31, inclusive. A levy and assessment of $2,000 was made upon the lands and property benefited in subdistrict No. 10, and was collected. Subsequently, in 1887, an additional sum of $14,000 was levied, as a special assessment for drainage purposes, on the lands and property benefited in subdistrict No. 10. Said assessments of $2,000 and $14,000 respectively were upon the lands and property of said subdistrict 10 only, and were for the payment of benefits to lands and property in said subdistrict 10 only; and the improvements to be paid for by said assessments were not benefits to any other lands or property, and were no part of the main drain or general system of drainage for the benefit of the entire Lake Fork special drainage district. The commissioners did not, at the time the levy of $14,000 was made, order the tax to be paid in installments, but tax-lists for the whole of the as

PEOPLE ex rel. POLLARD et al. v. SWIGERT, sessments of $14,000 were placed in the

Auditor of State.1

(Supreme Court of Illinois. Oct. 31, 1889.)

DRAINAGE-SUBDISTRICTS-BONDS.

1. Under Drainage Act Ill. June 27, 1885, which

tricts.

hands of the treasurer of the district for collection on the 1st day of July, 1887, and remained in his hands until the 14th day of November, 1887; and during the intervening period, of about four and a half months, the treasurer collected $8,408.18 of said assessment, leaving unpaid thereon the sum of $5,591.82. Thereupon, on the 14th day of No

provides (section 52) that the commissioners of a special drainage district shall have like powers as other drainage commissioners, and (section 43) that the commissioners of drainage districts may subdivide their districts, the commissioners of special drainage districts have a right to form subdis-vember, 1887, the drainage commissioners of Lake Fork special drainage district, in the 2. Under section 63, which provides that drain-counties of Piatt, Champaign, and Douglas, age commissioners may postpone the payment of drainage taxes and borrow money for the construction of drains, and issue bonds therefor, secured by lien on such unpaid taxes, the commissioners of a special drainage district have no right to issue bonds binding the district for work done in and for the benefit of a single subdistrict, and to be paid

for by a tax on such subdistrict.

Original application for mandamus.

and state of Illinois, made an order postponing the payment of said $5,591.82 until the 1st day of September, 1892, and issued bonds for 90 per cent. of the unpaid and postponed $5,591.82, with interest coupons attached. Four of said bonds were for $1,000 each, and the fifth was for $1,032.64. The bonds and amounts and dates of maturity. One of said coupons were alike, except in respect to bonds reads as follows: "No. 35. $1,000. United States of America, County of Piatt, State of Illinois. Construction Bond. Lake Fork Special Drainage District. On the first day of May, 1893, for value received, the Lake Fork Special Drainage District prom1Reported by Louis Boisot, Jr., of the Chicago bar,ises to pay to the bearer hereof the sum of

S. R. Reed and H. H. Crea, for relators. George Hunt, Atty. Gen., for respondent.

BAKER, J. This is an original suit in this court, wherein James S. Pollard and Milton A. Goff, partners under the firm name of Pollard & Goff, filed a petition for a writ of

one thousand dollars, in lawful money of the | ditor for registration, and tendered him the United States, at the fiscal agency of the fees allowed by statute, and presented to him treasurer of the state of Illinois in the city a sworn statement made by the commissionof New York, state of New York, with in- ers of the drainage district; but registration terest at the rate of seven per cent. per an- of the bonds was refused. num from the first day of December, 1887, The drainage act approved June 27, 1885, until paid, as is shown by and upon the sur- and in force July 1, 1885, is a revision and render of the interest coupons as they sever- amendment of the drainage law of 1879, in ally become due. This bond is one of five force July 1, 1879, and of several other acts bonds issued by said drainage district, four therein mentioned, and its provisions govern being for the sum of one thousand dollars in respect to all the matters here at issue. each, and one being for the sum of $1,032.64; Laws 1885, p. 77, etc. Section 11 and secall being of like date, bearing like interest, tion 30, and all the intervening sections of payable at like time and place, and issued on the act, relate to the formation, in counties the second assessment of subdistrict No. 10 under township organization, of drainage disof said Lake Fork special drainage district, tricts composed of lands that are all located confirmed on the 25th day of June, 1887, in one township, or to what are called "comagainst all the lands within said subdistrict bined" or "township" drainage districts, No. 10, at the date of such confirmation, the and to the powers and duties of the commispayment of the unpaid portion of said assess- sioners and officers of, and the mode of proment being duly extended until September 1, cedure in, such districts. It would seem that 1892, and on which assessment there remains section 31, and most, if not all, of the secunpaid the sum of $5,591.82. All said bonds tions that follow, to section 47, inclusive, are are issued under and by virtue of the sixty-general in their character and scope, and are third section of an act of the general assem- intended to have application to drainage disbly of the state of Illinois, entitled 'An act tricts organized or operating under the act, to provide for drainage for agricultural and irrespective of the question whether they are sanitary purposes, and to repeal certain acts township, union, or special drainage districts. therein named,' approved June 27, 1885; in Section 48 relates to union drainage districts, force July 1, 1885. For the payment of or such as are formed where the lands lie in which principal sum and the interest coupons two towns, in the same or different counties, attached, the faith of said Lake Fork Spe- both under township organization; and in recial Drainage District is hereby irrevocably spect of such districts it is provided that the pledged, together with the unpaid assess-clerk and commissioners shall have like powments above described in subdistrict No. 10, ers and duties as provided for such officers in becoming due September 1st, 1892, upon districts wholly in one town. Section 49, which this bond and coupons attached are and most of the following sections, relate to based, and are constituted a special lien for special drainage districts, or such as the payment thereof. And we, the commis- formed where the lands lie in three or more sioners of said special drainage district, do towns, in the same or different counties, or hereby certify that all requirements of law in a county not under township organization, have been fully complied with in making or partly in a county under township organsaid assessment and extending the time of ization and partly in a county not under payment thereof, and in making and issuing township organization. Section 43 is the said bonds. In testimony whereof," etc. only section of the act which purports to "LAKE FORK SPECIAL DRAINAGE DISTRICT treat of subdistricts; and it not only proIN THE COUNTIES OF PIATT, CHAMPAIGN, vides for the formation of subdistricts by the AND DOUGLAS, AND STATE OF ILLINOIS. By owners of land in main districts, for the pur[Signed] TIMOTHY FOOHY, [Seal,] P. T. pose of local or more minute drainage, in the GALLIVAN, [Seal,] CHARLES B. MOORE, manner provided in the act for the organiza[Seal,] Commissioners of Said District." To tion of main districts, but also provides that each of said bonds five coupons are attached, "in drainage districts, organized or proposed one of which reads as follows: "No. 35. to be organized, which have one or more lat$70.00. On the first day of May, 1893, the eral drains, or proposed drains, which are inLake Fork Special Drainage District in the dependent of each other, except as to the Counties of Piatt, Champaign, and Douglas, main drain or outlet, and which do now or and State of Illinois, will pay the bearer, at will drain separate areas within said district, the fiscal agency of the treasurer of the state it shall and may be lawful for the commisof Illinois in the city of New York and state sioners, at their option, to divide the district of New York, seventy dollars, lawful money into as many subdistricts as there are sepaof the United States, being one year's inter- rate areas, for the purpose of making assessest on their bond numbered as above. LAKE ments of benefits for the work to be done in FORK SPECIAL DRAINAGE DISTRICT IN THE said subdistrict." The contention that the COUNTIES OF PIATT, CHAMPAIGN AND DOUG-authority thus given to commissioners to LAS, AND STATE OF ILLINOIS. By [Signed] make subdistricts is not granted to the comTIMOTHY FOOHY, [Seal,] P. T. GALLIVAN, missioners of special drainage districts, for [Seal,] CHARLES B. MOORE, [Seal, ] Commissioners of Said District." The petitioners presented the bonds in question to the au

the reason the section granting the power is found in that part of the drainage law which relates to drainage districts lying wholly in

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