Darling v. Buzzi

141 P. 249, 92 Kan. 510, 1914 Kan. LEXIS 267

• Court: Supreme Court of Kansas
• Decided: June 6, 1914
• Docket: No. 18,670
• Status: Published

Opinion

The opinion of the court was delivered by

West, J.:

This is an appeal from a judgment confirming the report of commissioners in favor of the construction of a certain drainage ditch. (Gen. Stat. 1909, §§ 3057-3070.) In March, 1910, a petition was filed to which a demurrer and written objections were interposed. These were overruled and commissioners appointed, who, on June 6, 1910, made a preliminary report recommending a ditch as therein described. Objections and remonstrances were made to this report, which was set aside, one of the commissioners was removed and another appointed in his place with orders to file a preliminary report on the first day of November, which was done, and to this report written objections were also filed. March 22, 1912, the third and final report was made, which was likewise met with exceptions and remonstrances. These were overruled and the report was confirmed June 13, 1912. On the next day Boyer and Buzzi each moved for a new trial, and on June 29, 1912, their motions were overruled, but the court modified the assessment of damages by making the benefits awarded against the property of these defendants somewhat smaller. On July 10, 1912, Boyer and Buzzi filed their notices of appeal to the supreme court, each of which notices bore acceptance and acknowledgment of service, dated July 3, 1912. September 9, 1912, Boyer filed a motion for rehearing, which was denied January 2, 1913.

The defendants insist that the petition left out the essential averment that the drainage-in question could not be accomplished in the best and cheapest manner without affecting the lands of others, but section 3057 prescribes certain matters which the petition shall contain, including a statement of the method by which it is believed that such drainage can be accomplished in the cheapest and best manner, and the belief of the petitioners that the cost, damage, and expense of such drainage will be less than the benefit which will result to the “owners of the lands and other properties and easements . . . likely to be benefited thereby.” These' the petition contained, .and we find that the effect of the omitted averment was covered by the allegations fairly construed, hence the, court was not without jurisdiction.

It is also urged that the final location of the ditch differs materially from the one specified in the original petition, but section 3061 expressly provides that the ■drainage commissioners, in locating the line or line of work of drainage, may vary from the line prescribed in the petition as they may deem best, and may fix the beginning and outlet so as to procure the best results. Considering this wide discretion, we find no ground for complaint in this respect, especially in view of the repeated hearings and considerations given the matter by the district court.

It is asserted that no report was made or testimony offered as to the number of acres drained, but in the second report of the commissioners the land affected by the drainage was set forth by lots and subdivisions, which would seem to be equivalent to giving the area.

It is suggested that the court failed to find affirmatively that the ditch would improve the public health, and this is put forward as a fatal omission. But this affirmative finding was made when the second preliminary report came in, as shown by the counter-abstract, which was the proper time, and thus the .statute was, in that respect, complied with. (§ 3058.)

The point that no affirmative evidence was offered to show that the ditch would improve the public health is answered by the fact that the finding of the commissioners to that effect is made prima facie evidence. (§ 3058.)

While the proceeding seems to have been attended with spirited opposition, the defendants were repeatedly heard and the trial court' appears to have given the matter great consideration.

The plaintiffs urge that their former motion to dismiss should have been granted for the reason that the required procedure was not followed. If section 3058, •enacted in 1907 and amended in 1909, and section 3062, enacted in 1907, still control they were not complied with. If the civil code, amended in 1909, applies, the defendants are in court. ■ But as our view of the merits compels an affirmance-we do not deem it necessary to decide this” question.

The judgment is affirmed.