French v. White

Stokrs, J. We are of opinion that the county court, and the freeholders, appointed by it to prescribe the best mode of draining the land of the petitioner, clearly exceeded, in their proceedings in this case, the powers given to them by the act on' which they were founded. The freeholders, in their report, state that they are of opinion that the premises of the petitioner, described in the petition, require to be drained, and that they adjudge that the best mode of draining them is by a drain, running westerly from said premises, “ on to ” the adjoining lands of the respondents ; and that they therefore order that the petitioner shall have the right and privilege to drain his land “ on to and upon the said land of the respondents,” and that he have leave and license to build, open, construct and repair a drain, commencing at a well, standing upon said land of the petitioner, and terminating at a point on the land of the respondents, (the line, course and termination of which are particularly described,) of such size and [175] dimensions, that it shall be able to convey all the water, from the premises of the petitioner, in as full and ample a manner as he shall desire, and to enter upon said land of the respondents, for the construction of such drain, within such time as the court shall designate, and to repair and inspect the same, at any and all times thereafter. It appears, by the description of the said drain in this report, that it would terminate on the respondents’ land, and not extend across it; and nothing is stated in it, by which it is shown, or can be inferred, that the water in the drain would be thence conveyed from it. The court accepted the report, and affirmed, and decreed “ the matters therein contained,” and “ all that the said freeholders had therein said, adjudged and done;” and gave “ full power and authority to the petitioner,” on and after a day designated, “ to enter in and upon said premises of the respondents, pursuant to said report,” and conferred upon the petitioner, “ all the powers and privileges, given by said report, to construct, erect, and make said drain, and repair the same.” The act, on which this petition was brought, by its terms only authorizes the county court to empower the owners of lands, which require draining, to drain them across the lands of adjoining proprietors. It does not authorize that court to allow them to drain their lands in such a manner, that the water will be discharged from them, and be deposited and remain on the lands of such adjoining owners. There is no principle by which the power, thus specially conferred- on that court, can be so extended, by construction, that it can authorize the owners of lands to drain them in that mode; and if the strict meaning of the language used in the act, could be departed from, such a construction would be most unreasonable, and plainly contrary to the intention of the legislature. As these proceedings are defective in this particular, the judgment complained of should be reversed. The disposition of the case, on this point, renders it un [176] necessary to consider the other questions that have been made. In this opinion,, the other judges, Waite and Hinman, concurred. Judgment reversed.