Arstill v. Fletcher

BURNETT, J. 1. Opposing the filing of the amended complaint, the defendants argued that the original complaint stated a cause of action substantially for trespass and the amended complaint sets forth a breach of contract giving rise to damages. In our judgment, the contention of the defendants in this respect is unsound. It is said in the original complaint that the ditch in question was duly located, surveyed and established over and within the land of the plaintiff. The allegation of the second complaint is substantially the same. The effect of the two pleadings is identical. Both plainly point out that the bone of contention is the earth which was dug out of the ditch. The court was clearly within the bounds of its discretion in allowing the amendment before trial, as described in Section 102, L. O. L., reading thus: “The court may, at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended by adding the name of the party, or other allegation material to the cause; and in like manner and for like reasons it may, at any time before the cause is submitted, allow such pleading or proceeding to be amended, by striking out the name of any party, or a mistake in any other respect, or when the amendment does not substantially change the cause of action or defense, by conforming the pleading or proceeding to the facts proved.” 2-4. The important assignment of error relied upon by the defendants is found in their objection to various parts of the charge of the court to the jury. In substance the instructions challenged are that, whatever the necessity in the construction of the ditch, the defendants had no right to throw the excavated earth upon the west side thereof and beyond the plaintiff’s line unless the original plan of drainage adopted by the — 314 — district directed that the earth should be thus deposited, and further, that although the original plan designated the west side of the ditch as the place to put the excavated earth, yet the jury had a right to consider whether or not it was necessary so to do, and to what extent it was requisite. In other words, the effect of the instructions was to submit to review and revision by the jury the judgment of the district and its engineer exercised in the construction of the ditch. The formation of drainage districts had its origin in Chapter 340 of the Laws of 1915, entitled “An act to provide for the organization of drainage districts, for the construction, operation and maintenance of drainage systems, for the payment of the cost of such systems and the expenses incidental thereto.” The organization of such a body is inaugurated by filing in the office of the county clerk a petition signed by the owners of 50 per cent of the acreage of swamp, wet, overflowed or irrigated lands included in the proposed district. After certain preliminary procedure, three supervisors are elected. They then appoint an engineer, who shall have control of the engineering work in the district. The act, Section 8, requires that: ‘ ‘ The said engineer or engineers shall make all necessary surveys of the lands within the boundary lines of said district, as described in the petition, and of all lands adjacent thereto that may be or will be improved or reclaimed in part or in whole by any system of drainage or levees that may be outlined and adopted, and said engineer or engineers shall make a report in writing to the board of supervisors with maps and profiles of said surveys, which report shall contain a plan for draining and reclaiming the lands described in the petition -or adjacent thereto from overflow of or damage by water; said maps and profiles shall also indicate so far as necessary the physical characteristics of the lands, and location of any public roads, railroads — 315 — and other rights of way, roadways and other property or improvements located on such lands. * * Upon receipt of the final report of said engineer concerning surveys made of the lands contained in the district organized, and plans for reclaiming the same, the hoard of supervisors shall adopt such report or any modification thereof approved by the chief engineer and thereafter such adopted report shall be the plan for draining and reclaiming such lands from overflow or damage by water, and it shall after such adoption be known and designated as ‘the plan for reclamation,’ which plan shall be filed with the secretary of the board of supervisors and by him copied into the records of the district.” The County Court is required to appoint three commissioners possessing certain qualifications. Equipped with a copy of the plan and list of lands involved, they inspect the district and the lands therein and assess the benefits and damages accruing to each tract. Their report is filed with the County Court and opportunity to be heard in objection to the report is afforded by published notice. After considering all objections and exceptions, if the County Court is satisfied that the estimated cost of the improvement is less than the benefits to be derived therefrom, it shall approve and confirm the commissioners’ report as amended or modified. Anyone aggrieved may appeal from the judgment of approval. The act then empowers the supervisors “to build, construct and complete all or any works and improvements which may be needed to carry out ‘the plan of reclamation,’ to hire men and teams, and to purchase equipment and supplies.” These notations respecting the provisions of the drainage district law are taken from the act already mentioned and the amendments thereto found in Chapter 414 of the Laws of 1917. — 316 — One of the contentions of the plaintiff, which seems to have been adopted by the court, is that the plan mast specify that the earth taken out of the ditch is to be deposited upon the west side; for want of which the defendants would be guilty of wrong to the plaintiff in putting it there. In our judgment, no such meaning can be predicated of the term “plan” as used in the act. “Plan” contemplates “the representation of anything drawn on a plane, as a map or chart”: Standard Dictionary. In other words, it is a map. It does not include the delineation of cross-sections or elevations. It has to do with the length and direction of the ditches designed to effect the drainage desired. It is not contemplated by the act that the plan shall include particular and minute specifications about where each spadeful of earth shall be deposited. These things must be left in practice to the governmental discretion of the officers of the drainage district. The district, operating through its supervisors, is a branch of governmental power the exercise of which is designed to accomplish results beneficial to at least a portion of the public, the land owners whose property is advantageously affected by the project. In the absence of fraud, their plan as approved by the judicial examination of the county court is not to be called in question or reviewed collaterally by any other tribunal. Much less is it to be left to the judgment of a trial jury in an action for damages. The principle is well stated in the opinion of Mr. Justice Moore in Giaconi v. Astoria, 60 Or. 12, 19 (113 Pac. 855, 37 L. R. A. (N. S.) 1150), thus: “A municipal corporation in devising plans for improving public highways within its borders acts judicially, and when proceeding in good faith is not liable for errors of judgment; but in constructing the work it acts ministerially, and is bound to see that the — 317 — plan is executed in a reasonably safe and skillful manner”; citing authorities. The question there involved was the grading of a street, but the principle is the same in the instant case, for in both situations there is involved the exercise of governmental authority. It is true, as contended by the plaintiff, that: “Private property shall not be taken for public use, nor the particular .services of any man be demanded, without just compensation; nor except in case of the state, without such compensation first assessed and tendered”: Oregon Constitution, Article I, Section 18. This condition is met and satisfied in the case at bar by .the statement at the trial by the plaintiff’s counsel to the effect that the defendants had a right to construct the ditch. What the plaintiff’s attorney said was in legal effect an admission that the land had been legally condemned and the matter of compensation properly adjusted by judicial proceedings or agreement of the parties. Under the constitutional guaranty above noted the defendants would have no right to invade the premises of the plaintiff and construct the ditch until the matter of compensation was first adjusted. We have, then, a case where the defendants are justified in taking the plaintiff’s property so far as it is involved in the construction of the ditch. Under Section 16 of. the original act, the supervisors have full power and authority to build, construct and complete all or any works or improvements which may be needed to carry out the plan. The fallacy of the plaintiff’s argument, seemingly adopted by the court, lies in the apparent assumption that a drainage ditch is constructed solely by excavation. This is not always the case. Such construction may often include filling as well as excavation. Anyone with practical — 318 — knowledge of the subject may readily see as an illustration that a ditch on a steep side-hill will consist very largely of an embankment on the lower side. The dirt is never piled on the upper side in such cases. And in this instance, the levee formed by the deposit of the earth on the west side probably was designed to prevent the flood waters going beyond the ditch to inundate the lower lands in that direction. In other words, it was most likely intended as a reinforcement of the ditch. Having in mind the objects to be obtained and the benefits to be acquired by the project, much must be left to the judgment of the district officers, acting in their governmental capacity in carrying out the original ^design or plan. They are not here charged, as in the Giaconi case, with having acted negligently. Neither is fraud imputed to them. Giving it full effect in favor of the plaintiff, the most that is alleged is that in their judgment the proper place to deposit the earth was on the west side of the ditch. That they had a right to use the earth acquired in the excavation for the purpose of completing its construction is taught by the opinion of Mr. Justice McBride in Sharkey v. Portland, 58 Or. 353 (114 Pac. 933). The matter involved in that case was .the grading of a street. It is there said: “The weight of authority seems to be that the city is entitled to use the earth excavated from one portion of a street to make fills required upon the same street, or upon other streets embraced in the same general plan of improvement. ’ ’ The subject is treated at length in Hamby v. Dawson Springs, 126 Ky. 451 (31 Ky. Law Rep. 814, 104 S. W. 259, 12 L. R. A. (N. S.) 1164), and particularly in the note in the latter publication. — 319 — We may safely say that in making an improvement of the kind in question the public authorities have a right to use the material found in the ditch for the completion of that particular work, and that, in the absence of fraud or negligence, they are not liable for the consequent injury which may happen to the land owner. These questions are properly to be worked out and concluded in condemnation proceedings. Once given the right to construct the ditch, they have full power and authority, as declared in the statute, to do those things which are proper for the accomplishment of the work in hand. The analogy of street grading cases holds good in one of the sort before us. The action of the officers within such limits, that is, without negligence or fraud, is not subject to collateral review by a jury. If by the fair exercise of their judgment the officers of the district determined that it was necessary 'to put six thousand cubic yards of excavated earth on the west side of the ditch as a. levee in aid of the reclamation project, the jury in such a case as this cannot be permitted to question their decision or to say that less or more or none of the earth should have been there deposited. In this respect the instructions were erroneous. The judgment is reversed and the cause remanded for further proceedings. Reversed and Remanded. McBride, C. J., and Benson and Harris, JJ., concur.