Kewaunee, Green Bay & Western Railway Co. v. Brown County Farm Drainage District No. 3

The following opinion was filed June 23, 1924: Eschweiler, J. The margin between the amount of benefits to be obtained and the cost of the work is conceded to be but a narrow one. It is frankly conceded that if substantial damages to appellant must be included in the construction cost of such drainage under the provisions of ch. 88, Stats, (the Farm Drainage Law), and particularly sub. (4), sec. 88.02, de [451] fining the cost of construction as including damages to lands and corporations both within and zvithout such drainage, and sec. 88.23, providing for. liability of the drainage district for such damages as may result to lands outside its boundaries from the work done therein (such damages, however, meaning only such as could be recovered against a natural person for like injury resulting from like work), then such a result would make an excess of costs over benefits and require an abandonment of the plans. It is further frankly conceded that if, in order to meet the statutory and jurisdictional requirements, tile drainage must be now planned for. as a part of the scheme, such a requirement would have the same effect as under the preceding paragraph. .Many interesting questions of law are ably presented by the parties under the first of the two propositions just above stated, but in view of the conclusion which we have reached as to the second one we shall not here consider or dispose of them. This drainage area exceeding 200 acres, the law requires that prior to the determination by the court as to whether or not the proposed drainage district shall be organized there shall be obtained and filed a report by the chief engineer of the state of Wisconsin, as specified in sub. (7), sec. 88.06, formerly sub. (7), sec. 1368 — 6, Stats., containing, among other things: “(a) The location, design, feasibility and cost of the proposed outlet drains; (b) a general description of the additional drainage necessary to reclaim the land fully for general agricultural purposes, and the probable cost of the same.” With this report there shall be included one from the College of Agriculture of the University on the quality and character of soils and subsoils; a soil map; the present agricultural value of the lands; the kinds of crops to which such lands will be adapted after drainage. The same section of the statute provides that such reports shall be prima facie évidence of the facts therein [452] contained. Such reports were made, filed, and are a part of the record. By sub. (12), sec. 88.02 (formerly sub. (12), sec. 1368 — 2), the term “drain” means an open ditch, a pipe line tile, levee, pump, or other device for the drainage of water from land. And by sec. 88.29 (formerly sec. 1368 — 29): “The farm drainage law shall be liberally construed to promote the public health, the public welfare, agriculture, horticulture, and mining; and the court shall have an equitable jurisdiction over all proceedings thereunder.” The report of the chief engineer contained the following: “There are 3,200 acres in the drainage, of which approximately 2,000 are wet. ... On the basis of a little less than eight miles of open ditch, . . . the estimated cost is $26,500.” The plan provides for a main ditch on Ellis creek and for seven lateral ditches. Also— “(b) Additional drains required. — The outlet drains as designed will take care of the ordinary floods and give some direct under-drainage, but their chief function is to serve as outlets for lines of four and five-inch tile that will be necessary to complete the drainage of the wet land. A thorough system of tile drainage should be planned and installed on these lands before they can be expected to produce with the greatest profit. In the average soil, these lines of tile should be four feet deep generally and from four to eight rods apart. . -. . These lines of small tile will cost about $1.75 a rod for tile and labor. On this basis the cost of the supplementary drainage can be computed.” The report from the College of Agriculture contained the following: “About two thirds of the marsh is entirely open and used chiefly for pasture and wild hay meadow. . . . Considerable areas have been cultivated with good results in dry years, but with poor results on the average because of the deficient drainage. . . . Thorough tile drainage will make this soil nearly as valuable as the surrounding upland soil. . . . [453] Peat comprises about one third of the wet land in the marsh. . . . The first step necessary for the proper development of this peat soil is . . . proper fertilization and cultural practices. . . . Killing frosts are liable to occur on this land occasionally during the growing seasons, and this must be taken into account in selecting crops for such land and in estimating its value as farm land. . . . The quality of the soil in this project is such as to warrant the expenditure of money for the proposed drains and the necessary supplementary drains.” These statements in such reports are, under the statute as above quoted, made prima facie evidence, and none of them are disputed by evidence or denied by any of the findings. On behalf of the drainage board and those interested in the lands within the proposed district is urged the view which was adopted in the courts below, that as to the supplementary tile drainage mentioned in each of such reports, such additional and very substantial expense and cost may be left to the individual landowners to be put in at their several wish and cost, and need not be considered or included in determining whether or not the district can be properly organized under the law. Although this law, under its language above quoted, is to be liberally construed, nevertheless, where the statute in giving such drastic powers as are necessarily involved in such proceedings also declares certain jurisdictional requirements, those must be substantially followed. Guenther v. Rutkowski, 176 Wis. 180, 185 N. W. 639. It is so stated, also, in Bradley v. Wis. D. Co. 181 Wis. 601, 603, 195 N. W. 705. Though the power to amend the proceedings is very broad, as stated in In re Rocky Run D. Dist. 177 Wis. 524, 529, 188 N. W. 493, yet we find no power granted to the court to disregard or make optional with individual members elements which are regarded as substantial parts going to make a drainage system as a whole. Furthermore, by sub. (1) (a), sec. 88.08 (formerly sub. (1) (a), sec. 1368 — 8), it is expressly required that in areas such as here, the board, with the aid of an [454] engineer, shall “Lay out drains of sufficient depth and capacity to adequately drain the lands proposed to be drained,” etc. We are compelled to the conclusion that as those reports stood- before the trial court as a matter of expert evidence, required by law, they must be construed as contemplating, as an essential element of an adequate drainage system, the providing of supplemental tile drains, and without which the drainage as a system would be incomplete, inadequate, and therefore not feasible. To hold otherwise would justify disregarding other important statutory requirements, would permit the authorizing of the starting of such projects by piecemeal rather than as entireties, and permit placing a present burden on lands for which there would be no equal or adequate benefits. It in effect would be the making by the court of a different plan of improvement than that contemplated by the statute, and such cannot be done. See In re Jensen (Minn.) 198 N. W. 455. With such excluded item of cost for tile draining included within the cost of construction, such costs, it is conceded, are in excess of benefits, and the application to organize this proposed drainage district should for that reason have been denied. By the Court. — Judgment reversed. A motion for a rehearing was denied, with $25 costs, on October 14, 1924.