Drainage District No. 2 v. Extension Ditch Co.

BUDGE, J. This is an appeal from an order confirming the report of the commissioners of Drainage District No. 2 of Canyon county. At the hearing upon the petition for the organization of the district, certain lands of the appellants were, upon stipulation, excluded from the boundaries thereof. The report of the commissioners recommended that these lands be included in the district. The point is sought to be made that the order of the court, excluding such lands, is res adjudicada, and that neither the commissioners nor the court had authority upon the final hearing to include them therein. The first order, excluding the lands from the district, is-not a final order. Furthermore, the statute makes it the duty of the commissioners to determiiie what additional lands will be benefited or damaged, and the amount of the benefits or damages, in the same manner as though such lands were included in the original petition, and gives the court express authority to require the commissioners to modify their report in any respect and to establish the boundaries of the district accordingly. (In re Organization of Drainage District No. 1, 30 Ida. 351, 164 Pac. 1018.) It is urged on behalf of the Extension Ditch Company that the inclusion of a portion of its canal system within the district was without authority, first, because it does not contribute to the water-logged condition of other lands in the district, and, second, because canals do not come within the purview of the term “high lands,” as used in C. L., sec. 168:13. The evidence is conclusive against the contention of appellants upon the first point. The second point was before this court in the case of Burt v. Farmers’ Co-operative Irr. Co., Ltd., 30 Ida. 752, 168 Pac. 1078, wherein it was held that it was without doubt the intention of the Taw to provide that if water escapes by seepage from an irrigation canal and contributes — 319 — to the water-logged condition of land in a drainage district, the right of way of such canal should be assessed its proportion of the cost of construction of the drainage works the same as other lands. Error is predicated upon the failure to serve notice of the hearing on the petition and the report of the commissioners, upon certain married women owning a community interest in some of the lands included within the district, it being conceded that the record title thereto in each instance stands in the name of their respective husbands. Service of process upon the husband, he being the member of the community in whose name community property stands, is sufficient. Service of notice of the hearing upon the commissioners’ report was made by F. B. Suplee, one of the commissioners. It is contended that he was a party in interest and that service by him was, therefore, invalid. Without in any way intimating what our holding would be upon this point if properly raised, we are of the opinion that in this particular proceeding the irregularity, if such it be, has been waived. It is a general and well-settled rule that: “A failure to give notice, or any irregularity in giving it, is waived if the persons entitled to notice appear and take part in the proceedings in the matter oh matters concerning which they are required to be notified.” (Lewis, Eminent Domain, 3d ed., p. 1028, and numerous authorities there cited.) This objection was not taken by a special appearance, but the parties seeking to take advantage of it appeared generally on the hearing and are bound by the above rule. It is insisted that no proper proceeding was had for the taking of the property of remonstrant, Payette National Bank, for a right of way, appellants contending that the provisions of the general statute regulating the exercise of the right of eminent domain should have been followed. We are not in accord with this contention, but are of the opinion that it is optional, where the works are constructed within the district, for a drainage district to invoke the pro-. ceedings provided for under the general statute governing the — 320 — exercise of the right of eminent domain or to exercise that right under C. L., subd. 4, sec. 168-:12, wherein it is provided that: “ .... the commissioners shall examine the lands described in the petition and proposed to be drained ,and protected, and the lands over and upon which the work is proposed to be constructed and shall determine and report: “.....4. What lands will be injured thereby and the aggregate amount of such injuries; and they shall award to each tract or lot, by whomsoever held, the ampunt of damage so determined by them. ’ ’ N And under the provisions of C. L., sec. 168:19, providing that: “168:19. Hearing on confirmation. The district court for said county or the presiding judge thereóf may fix a time at any term or appoint a special term for hearing the objections, and, on demand of any person or corporation assessed for benefits or awarded damages, may frame an issue in-said matter, impanel a jury and take its verdict upon the trial of such issue, whether the amount of damages awarded by the commissioners is adequate or whether the assessment of benefits to any remonstrant, demanding the review by jury, is too high; and the jury may assess the same.....” The error assigned in the instant case raises the question only whether or not the district is limited to the right to exercise the power of eminent domain under the general statute and does not question the regularity of the proceedings had in this ease. While we do not wish to be understood as approv-. ing the sufficiency of the proceedings taken in this matter, that question is not here for review. There are other sections of the act, containing similar provisions respecting the manner in which damages shall be ascertained for the taking of land for right of way purposes. When the whole act is construed together, it is apparent that it was the intention of the legislature that ,a drainage district might exercise the right of eminent domain by awarding damages in the manner referred to in the sections above mentioned. Every land owner affected by the proceedings, or — 321 — whose property is taken or damaged, is entitled to a jury trial in the district court for the purpose of ascertaining the validity of the assessments levied against his land or the justness of the damages awarded. These proceedings, when properly followed, with due regard to the rules and notices required to give validity to judicial proceedings, satisfy the requirements that private property shall not be taken for public use without just compensation or due process of law. (Portneuf Irrigating Co. v. Budge, 16 Ida. 116, 18 Ann. Cas. 674, 100 Pac. 1046; Eagleson v. Rubin, 16 Ida. 92, 100 Pac. 765; State v. Stewart, 74 Wis. 620, 43 N. W. 947, 6 L. R. A. 394; Chaplin v. Highway Commrs., 129 Ill. 651, 22 N. E. 484; Chronic v. Pugh, 136 Ill. 539, 27 N. E. 415; Coodwine v. Evans, 134 Ind. 262, 33 N. E. 1031.) It is insisted by some of the remonstrants that Certain lands owned by them, lying wesj: of the Oregon Short Line Railroad right of way, within the drainage district, were improperly included, for the reason that such lands will receive no benefit from the drainage system and do not contribute to the waterlogged condition of other lands in the district. With respect to such lands, the court found that they would receive the benefits shown by the report of the commissioners, that the sum assessed against such lands was a valid assessment to be levied against the same, that they would receive and derive benefits from the drainage district and the construction 6f the drainage system, that the assessment was not improper or excessive and that the same should be assessed, and that the assessments against such lands were not greater than the assessments upon other lands benefited by the construction of the drainage system. An examination of the record satisfies us that the court’s findings are supported by the evidence. The sixteenth assignment of error is directed against the action of the trial court in sustaining the report of the drainage commissioners in levying assessments for benefits against the lands and premises of each, and all of the remonstrants. It is contended that the evidence shows that the said levies for such purposes against the lands were not made in any manner — 322 — conforming to the requirements of C. L., sec. 168:13, formerly see. 9 (a), chap. 42, Sess. Laws 1915. In order to'determine the method to be used by the commissioners in apportioning the cost of the proposed works to the various tracts of land within the district, it may be helpful to bring together the provisions of the statute bearing thereon, without reference to the sections in which they are found, which read as follows: “. . . . The commissioners shall examine the land described in the petition and proposed to be drained and protected . . . . and shall determine and report: .... what lands will be benefited by the construction of the proposed works, whether the benefits will equal or exceed the aggregate cost of constructing such work, including all incidental expenses, costs of proceedings and damages; and they shall apportion and assess the estimated cost of the same on the lands so benefited by setting opposite the correct description of each tract, lot or easement, the portion of such cost assessed as benefits thereon.....In determining the amount which each tract of land will be benefited by such proposed drainage system, the commissioners shall consider the damage done to low land from seepage and saturation by irrigation water from high land, and the necessity for the carrying off of waste water, and such high lands shall be considered as being benefited to the extent and in the amount that such lands are responsible for damage to low lands from seepage and saturation by irrigation water.” i It is evident that the commissioners are to apportion and assess the estimated cost of the works according to benefits, but the sense in which the word “benefits” is used differs as applied to the two classes of land mentioned in the statute. By “high lands” reference is undoubtedly made to land"' which will not be enhanced in value by the construction of the drainage works. By “low lands” is meant lands which will be benefited in the ordinary sense, i. e., enhanced in value by the construction of the works. The benefit to each tract, lot or easement of low land is to be determined in proportion to the extent to which such land is enhanced in value hy — 323 — drainage. The benefit to each tract, lot or easement of high land is to be determined in proportion to the extent to which such land contributes to the damage of low lands by seepage of irrigation water, to the saturation or water-logged condition thereof. When we consider these provisions of the act, and the further provision that unless the benefits exceed the cost of the works the proceedings must be dismissed, it would appear that the only feasible method of giving effect to the provisions of the statute in the matter of assessing cost of the works to the various tracts of land in the district is first to determine the amount of the responsibility of the high lands for damage to the low lands from,seepage of irrigation water. The amount of such responsibility will be the proportion which the amount of water contributed by any tract of high land to the damage of low lands, through seepage of irrigation water, bears to the combined contribution of water causing damage to the low lands of the district from all sources of irrigation. In cases where a drainage district is composed of lands which have been artificially irrigated, the damage to the low lands from seepage of irrigation water may or may not coincide with the amount of benefits received by the low lands as a result of the construction of the drainage works, according to the circumstances of the case. If a portion of the benefits derived by low lands from the construction of the works will arise from enhancement of the value of the lands if they were in their natural state, or by changing conditions other than damage caused by seepage and saturation from irrigation water, the amount of such benefits must be determined by the commissioners, but cannot be considered -in determining the amount of the assessment to be charged against the high lands. In such a case, the amount to be assessed against the high lands shall be their proportion of that part of the cost which represents the damage done to the low lands by seepage and saturation of irrigation water. The commissioners are enjoined by the statute to assess against each tract, lot or easement of high land its proportion of the estimated cost of the works in accordance with its proportion of responsibility for — 324 — damage to' low lands of the district by seepage of irrigation water. After so determining the part of the estimated cost of the works which should be borne by the high lands, the remainder of such estimated cost shall be apportioned and assessed to the various tracts of low land according to benefits as that term is ordinarily used, that is, with relation to enhanced value by reason of the construction of the works. In this case, in determining the amount of benefits to the low lands, they were subdivided into divisions according to the distance of the water-table under the surface of the ground. The evidence shows, however, that the assessments were not levied according to the height of the water-table, but that the height of the water-table was an element considered by the commissioners in aiding them to determine the benefits, which the low land would receive from the construction of the works. It is not shown by the record in this case that the commissioners were not attempting to follow the correct rule in assessing the cost of the works. Error is predicated upon the fact that after the jury had returned a verdict on the remonstrance of the Extension Ditch Company, assessing its benefits in the sum of $1,500, the court, upon the .motion of the drainage district, supported by the affidavits of every juror to the effect that it was their intention by their verdict to find that the amount the Extension Ditch Company should actually pay toward the construction of the works of the district should be' $1,500, changed the verdict so as to find the amount of benefits received by the Extension Ditch Company as. $7,500, and to assess the amount which it should pay toward the construction of the improvements at $1,500, ór one-fifth, of the assessed benefits. All of the evidence in the case shows that the cost of construction of the drainage system would amount to one-fifth of the benefits assessed against the lands within the district. Appellants’ position is that under C. L., sec. 4439, the affidavits of the jurors could not be received- to impeach their verdict, except when obtained by resort to a determination of chance, and that the court erred in correcting the record of — 325 — the verdict. This is not a question of impeaching a verdict, but correcting it to conform to what was actually found and intended to be returned by the jury. The rule is that the court may permit the jury to fortify its verdict or to show by the affidavits of the jurors the verdict which they'found and intended to return, and this may be done after they have been discharged. (Hodgkins v. Mead, 119 N. Y. 166, 23 N. E. 559; Burhans v. Tibbits, 7 How. Pr. (N. Y.) 21; Prussel v. Knowles, 4 How. (Miss.) 90; Dalrymple v. Williams, 63 N. Y. 361, 20 Am. Rep. 544; Wirt v. Reid, 138 App. Div. 760, 123 N. Y. Supp. 706. See, also, Bates v. Price, 30 Ida. 521, 166 Pac. 261.) The order confirming the report of the commissioners is affirmed. Costs are awarded to respondents. Morgan, C. J., and Rice, J., concur.