« ForrigeFortsett »
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 in other words, not necessary to supplement is violated in compelling private persons who proof of the fact that the drainage of a marsh receive a special benefit to bear the expeuse. or pond will conduce to public health or welOn the contrary, in enacting such laws a fare by evidence of the number of persons high constitutional duty is discharged, and who will be benefited. It is necessary, howno private rights are invaded where special ever, in order to authorize the levying of an benefits accrue, although the expense is im- assessment, to show that the land owner will posed upon the property of the citizens. In receive a special benefit. Lipes v. Hand, speaking of the police power, Judge Cooley 104 ind. 503, 1 N. E. Rep. 871, and 4 N. E. says: “Laws imposing on the owners the Rep. 160. duty of draining large tracts of land, which in But it is one thing to be compelled to their natural condition are unproductive, and prove special benefits in order to justify speare a source of danger to health, may be en-cial ass-ssments, and quite another thing to acted under the same power, though in gen- be compelled to show who or what numbers eral the taxing power is employed for the will be benefited in health or comfort by a purpose; and sometimes land is appropriated system of drainage. We neither hold, nor under the eminent domain.” Cooley, Const. mean to hold, that benefit to the property of Lim. (5th Ed.) 734. A clear and vigorous an individual will warrant an assessment; statement of the law upon this subject is for if the benefit is solely to private property found in the case of Donnelly v. Decker, 58 irrespective of general or public consideraWis. 461, 17 N. W. Rep. 389. “It would tions, no compulsory assessment would be seem to be most reisonable,” said the court valid, since one citizen cannot be compelled in that case, “that the owner of the land to contribute to the improvement of anothdrained and reclaimed should be assessed to er's property. If, however, it can be justly the full extent, at least, of his special bene- concluded from the nature of the system of fits; for he has received an exact equivalent drainage adopted that there will be a materiand a full pecuniary consideration therefor, al element of public goud in the result, then and that which is in excess of such benefits the purpose is a public one, and property should be paid on the ground that it was his may be assessed. Nor would it change the duty to remove such an obvious cause of conclusion if a pond or marsh was wholly on malarial disease, and prevent a public nui- the land of one of the citizens; for although sance. The duty of one owner of such lands he may be compelled to bear the greater part is the duty of all, and in order to effectually of the expense, or, indeed, the entire cost, it enter upon and carry out any feasible system would be for the reason that his property reof drainage, through the infected district, all ceived the principal benefit, and not because such owners may be properly grouped togeth- it was his duty to drain the pond or marsh. er to bear the general assessment for the en- Of course, if the property of such an owner tire cost proportionally. Assessment in sim- received the whole of the special benefit, and ilar cases is not taxation.” Mr. Tiedman, in no public purpose was subserved, it must speaking of legislation compelling private bear the entire expense; but it is difficult to property to bear the expense of drainage, conceive a case in which this could happen, says: *The constitutionality of such legis- for the removal of a cause of disease or dislation has, as a reasonable exercise of the po- comfort must necessarily benefit, in some lice power of the state, been generally sus- degree, property in the vicinity. Where the tained on the general ground that the state element of public goud exists, there is authormay impose upon the owner the duty of ity to levy an assessment, but it is otherwise draining his lowlands, in consideration of the where there is no such element in the case. consequent increase in the value of his If the property owner was bound to remove lands." Tied. Lim. 445. As the drainage from his land causes of disease placed there act is constitutional, because a valid exercise by nature, it might well be held that he must of the police power, and as the exercise of bear the entire burden; but he owes no such that power in itself implies that the purpose duty to the community, nor is he liable to for which an assessment is directed is for the any one for injury arising from such a cause. public good, the purpose is necessarily a pub- An owner of land is responsible for injuries lic one.
As the purpose is necessarily pub- resulting from the construction of artificial lic in all cases where health, comfort, and swamps or ponds, but, independently of statconvenience are promoted, there can remain utory regulation, he is under no duty to in such cases no other questions than such drain natural ponds or marshes at his own as relate to the procedure, and the amount expense, although he may be compelled to of the benefits or damages assessed. Ford v.'pay the entire benefit which accrues to his
property. Reeves v. Treasurer, 8 Ohio St. cannot be reviewed or controlled by the 333. În 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 lanıls 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 affect only his rights, and we can consider said: “Whether the project was more com- no others. If the proceedings are effectual prehensive, or whether it embraced and af-against the attacking or objecting party, they fected more lands than was necessary in or- will be upheld. We cannot, therefore, conder to accomplish the drainage of the peti- sider what other parties, if any, are affected tioner's lands in the cheapest and best man- by the proceedings. The circuit court may, ner, was a subject for the exclusive judgment in the proper case, remand a drainage case of the commissioners of drainage. Their to the board of commissioners for further determination of that subject was not review proceedings, and this is such a case. Sunier able by the court.” “In this regard,” said v. Miller, 105 Ind. 393, 4 N. E. Rep. 867; the court in Anderson v. Baker, 98 Ind. 587, Bryan v. Moore, 81 Ind. 14. We cannot “the decision of the commissioners of drain- hold that the court erred in refusing to inage is analogous to the decision of the com- clude costs made by the remonstrant in the mon councils of cities upon the question of cost of constructing the ditch. Board v. benefits from the construction of sewers; it Fullen, 118 Ind. 158, 20 N. E. Rep. 771. is final in each particular proceeding, in the Nor do we think that the court erred in deabsence of fraud.” The same doctrine was nying the appellant's motion to tax all costs explictly asserted in Meranda v. Spurlin, 100 of appeal against the appellees, for they sucInd. 380, and in Markley v. Rudy, 115 Ind. ceeded on many of the issues. In the ab533, 18 N. E. Rep. 50. The rule declared in sence of the evidence, we cannot say that these cases is no more than the proper appli- there was any error in assessing benefits and cation of the general principle, asserted in a damages. The verdict shows that there was great number of cases, that, where a discre- a benefit, and this controls; for we cannot, tion is conferred upon local authorities, it on the face of the verdict, adjudge that there
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 tho 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 vio
lent methods, even of doing themselves jusMITCHELL, J., did not participate in the tice, and much more if they have no justice in decision of this case.
their claim, so that the entry now allowed by
law is a peaceable one; that forbidden is such (122 Ind. 1)
as is carrried on and maintained with force, SCOTT et al. v. WILLIS. 1
with violence, and unusual weapons." 4 Bl. (Supreme Court of Indiana. Nov. 20, 1889.)
Comm. 148; Judy v. Citizen, 101 Ind. 18. LANDLORD AND TENANT-RECOVERY OF POSSESSION
The owner of land who is wrongfully held -JUSTICE OF THE PEACE.
out of possession by one who has no legal or 1. An action under Rev. St. Ind. 1881, $ 5225, equitable right may embrace the opportunity which provides that where a landlord, in pursu' and gain peaceable possession, if he can; but, ance of legal notice or otherwise, is entitled to the unless he can obtain possession without force possession of land, he may have the tenant unlawfully holding over removed therefrom on complaint or show of violence, his sole remedy is to inbefore a justice of the peace of the county wherein voke the aid of legal procedure. To that end the lands are situated, may be brought before any a special statutory proceeding has been projustice of the peace in the county, and not neces-vided, whereby a landlord who is entitled to sarily before the justice of the particular township the possession may have a tenant who unlawwhere the lands are situated.
2. Where a lease of a mill provides that the fully holds over removed. The same statute lease shall terminate if the machinery breaks down, also provides that a tenant wlio has been the happening of that contingency terminates the evicted by force may have the possession release at once, and no notice to quit is necessary.
stored to him, even against a landlord who Appeal from circuit court, Montgomery might have had him removed by legal procounty; E. C. SNYDER, Judge.
cedure, on complaint by him made, in the Action brought by Abner D. Willis against same manner as provided in case of tenants James Scott and others to obtain possession holding over. Section 5237; Judy v. Citizen, of certain real estate leased by plaintiff to de- supra.“The common law affords no civil fendants. Judgment was rendered for plain- reinedy against a person who, having a right, tiff, and defendants appeal.
enters forcibly, (Taunton v. Costar, 7 Term. Kennedy & Kennedy and J. P. Green, for R. 431;) but the injured party must appeal appellants. M. E. Clodfelter, for appellee.
to the statutory action of forcible entry and
detainer,” (Fuhr v. Dean, 26 Mo. 116, 69 MITCHIELL, 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 tenant was forcibly intruded upon, he might whether or not, in actions like the present, have redress on complaint filed before any the jurisdiction of justices of the peace is co-justice of the county. This is the plain readextensive, territorially, with the county, or ing of the statute, and there is no reason for whether such action must be brought before construction. Upon the same principle that some justice either in the township where the it was held that in actions like the present defendant resides or in the township where the jurisdiction of justices is unlimited as to the real estate is situate. The question de- the amouni involved, it must also be held that pends upon the meaning attributable to sec- their jurisdiction is unlimited territorially, ex., tion 5225, Rev. St. 1881, which reads as fol-cept by the bounds of the county. Sturgeon
* Rehearing deniec.
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 The facts of the case appear in the petition may be, technically, a trespasser, and liable and answer, and, so far as they are material as such, the special statutory proceeding pro- to a consideration of the questions that arise vided for his removal is not an action for in this controversy, may be briefly stated. trespass to real estate. As was remarked in The “Lake Fork Special Drainage District in Moyer v. Gordon, supra, “the distinction be- the Counties of Piatt, Champaign, and Dougtween an action for trespass upon real estate, las, and State of Illinois,” was duly organized and to recover damages resulting therefrom, in 1882, under the drainage act approved and for a restitution of possession and dam- May 29, 1879, and in force July 1, 1879, and ages, under the forcible entry and detainer the several acts amendatory thereof. The statute, is plain and broad."
drainage commission of said special drainage It was provided in the lease that in case the district, after the location, construction, and mill broke down the tenancy should terminate completion of a main drain or outlet to carry at once. The court instructed the jury, off the waters of said district, divided the substantially, that when, by the terms of the district into 31 subdistricts, and numagreement between a landlord and tenant, the bered them from 1 to 31, inclusive. A levy lease is to terminate upon the happening of and assessment of $2,000 was made upon the something that may occur in the future, lands and property benefited in subdistrict the happening of the contingency terminates No. 10, and was collected. Subsequently, in the tenancy, and no notice to quit is neces- 1887, an additional sum of $14,000 was levsary; that the breaking down of the mill was ied, as a special assessment for drainage pursuch a contingency; and that, if the mill had poses, on the lands and property benefited in in fact broken down, the tenancy terminated subdistrict No. 10. Said assessments of $2,and no notice to quit was necessary. This 000 and $14,000 respectively were upon the was a correct statement of the law. The lands and property of said subdistrict 10 agreement that the tenancy should expire in only, and were for the payment of benefits to case the mill broke down so that it could not lands and property in said subdistrict 10 be operated, created a contingent limitation only; and the improvements to be paid for of the term, and when the contingency hap-by said assessments were not benefits to any pened the tenant was bound to take notice of other lands or property, and were no part of it, and surrender the possession. Clark v. the main drain or general system of drainage Rhoads, 79 Ind. 342; Hoffman v. McCollum, for the benefit of the entire Lake Fork spe93 Ind. 326. There is no error in the record.cial drainage district. The commissioners Judgment affirmed, with costs.
did not, at the time the levy of $14,000 was
made, order the tax to be paid in install(130 Ill. 608)
ments, but tax-lists for the whole of the asPEOPLE ex rel. POLLARD et al. v. SWIGERT, sessments of $14,000 were placed in the Auditor of State.1
hands of the treasurer of the district for col
lection on the 1st day of July, 1887, and re(Supreme Court of Illinois. Oct. 31, 1889.)
mained in his hands until the 14th day of DRAINAGE-SUBDISTRICTS-BONDS.
Novernber, 1887; and during the intervening 1. Under Drainage Act Ill. June 27, 1885, which provides (section 52) that the commissioners of a period, of about four and a half months, the special drainage district shall have like powers as treasurer collected $8,408.18 of said assessother drainage commissioners, and (section 43) ment, leaving unpaid thereon the sum of $5,that the commissioners of drainage districts may 591.82. Thereupon, on the 14th day of Nosubdivide their districts, the commissioners of special drainage districts have a right to form subdis-vember, 1887, the drainage commissioners of tricts.
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 construc- and state of Illinois, made an order postpontion of drains, and issue bonds therefor, secured ing the payment of said $5,591.82 until the by lien on such unpaid taxes, the commissioners of 1st day of September, 1892, and issued bonus a special drainage district have no right to issue for 90 per cent. of the unpaid and postponed bonds binding the district for work done in and for the benefit of a single subdistrict, and to be paid $5,591.82, with interest coupons attached. for by a tax on such subdistrict.
Four of said bonds were for $1,000 each, and
the fifth was for $1,032.64. The bonds and Original application for mandamus. S. Ř. Reed and H. H. Crea, for relators. amounts and dates of maturity. One of said
coupons were alike, except in respect to George Hunt, Atty. Gen., for respondent.
bonds reads as follows: "No. 35. $1,000. BAKER, J. This is an original suit in this United States of America, County of Piatt, court, wherein James S. Pollard and Milton State of Illinois. Construction Bond. Lake A. Goff, partners under the firm name of Fork Special Drainage District. On the first Pollard & Goff, filed a petition for a writ of day of May, 1893, for value received, the
Lake Fork Special Drainage District prom1 Reported by Louis Boisot, Jr., of the Chicago bar. ises to pay to the bearer hereof the sum 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 foliowing sections, relate to based, and are constituted a special lien for special drainage districts, or such as are 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,] Commis- the reason the section granting the power is sioners of Said District." The petitioners found in that part of the drainage law which presented the bonds in question to the au-relates to drainage districts lying wholly in