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description of each lot, block, tract, or parcel of land benefited, and the amount assessed as special benefits; the names and residences of the persons who paid the taxes thereon during the last preceding year, etc. The original assessment roll showed that certain lots, belonging to the city of Joliet, to wit, lots 16, 17, 18, 19, 20, and 21 in James E. Henderson's subdivision, etc., were assessed, each of the first five of said lots at $181, and the last lot, to wit, lot 21, at $118.

The original assessment roll also showed that the city of Joliet was assessed the sum of $3,800, as benefits, against the streets located within the boundaries of said district. At the April term, 1904, the city of Joliet filed objections to the confirmation of the report of the commissioners, and therein stated that the city of Joliet holds, in fee, title to parts of certain public streets and alleys within the limits of said proposed drainage district, and has an interest in other streets and alleys within the same for the purpose of maintaining such streets and alleys for public travel; that said city owns a bridge, situated on Washington street, where the same crosses Spring creek, and a bridge at Jackson street, where the same crosses Spring creek, all of the said bridges having been erected by said city at great cost and expense to it; that said city also owns lots 16, 17, 18, 19, 20, and 21 above named, and also owns a bridge erected across said Spring creek upon said lot 16. And the city objected to the confirmation of the report, upon the ground that there was no valid law authorizing the creation of such a district; that a part of the territory embraced within it was within the corporate limits of the city of Joliet, and the drainage of such parts had been taken charge of, and provided for, by the city under and by virtue of the charter of the city, and that it was unlawful to impose on such territory a second municipality or power for drainage purposes; that a part of the water course, described in the petition as Spring creek, is within the corporate limits of the city, and has been improved and is being maintained by said city, at great expense, as a part of the drainage and sewer system of said city, and that, for this reason, said district has no power to assume the control of said part of said Spring creek, or to interfere with the control of the same by the city; that a part of the territory in the proposed district is in said city, and the law does not authorize a drainage district to be created which will include within its limits a part of the territory of an incorporated city; that it is proposed to assess said city for alleged benefits to its streets and alleys, and said proposed district has no power to impose on the city an assessment for benefits to its streets; that it is proposed to assess said city in a further sum for benefits which will accrue to its said lands in James E. Henderson's subdivision, and said district has no power to impose an assessment on the city for such benefits, if

any there should be; that the carrying out of the plans of said district will result in the taking, damaging, and destroying of bridges, streets, alleys, school lots and lands, retaining walls, and other property of said city, and no lawful method has been followed or is being taken or is proposed by said drainage district to ascertain and determine the amount of damage to said city by reason of the taking or damaging of said property. On June 9, 1904, the court took up for decision the said objections to the said assessment roll of benefits, and, in its order entered as of the last-named date, the court "finds that the said assessment roll includes assessments levied in part against property which will actually be taken for the purposes of said district, which method of making the assessment of benefits the court finds is contrary to law, and the court further finds that said assessment roll should be in that respect amended or modified, and thereupon the court instructs the commissioners to so amend or modify said assessment roll as to exclude from the assessment of benefits by them made all lands which will actually be taken for the purposes of said drainage district." Subsequently, on June 24, 1904, the commissioners were given leave to amend their assessment roll, and, in their petition asking that the same be amended, they state that the amounts thereon against each lot, tract, or parcel of land were for benefits accruing to the same and not taken or required for the purposes of the proposed ditch; that no assessment was levied against any land required or taken for the said ditch for drainage purposes. Afterwards, in July, 1904, the commissioners filed a corrected assessment roll of benefits, which is stated by them to be "a true and impartial assessment of benefits accruing to lands located in said district, and which does not include land required for purpose of channel or ditches”; and in said corrected assessment roll the description of said lots 16, 17, 18, 19, 20, and 21 is corrected by adding thereto the words, “except portions for channel, as shown by 'Exhibit A,' filed September 18, 1903.” But the amounts assessed against said six lots are the same as in the original assessment roll, to wit, $181 against each of lots 16, 17, 18, 19, and 20, and $118 against lot 21. In the corrected assessment roll the description of the amounts assessed against the city of Joliet is corrected so as to read as follows: "To amount assessed as benefit against the streets located within the boundaries of said district, except portion for channel, as shown by 'Exhibit A,' filed September 18, 1903, $3,800.00.” On July 18, 1904, the commissioners reported that they had overruled the objections, and returned into court a corrected assessment roll of benefits. On July 29, 1904, the court entered an order reciting that the commissioners had filed an amended and corrected assessment roll of bege

fits, and ordered that the same be approved city, or the amount of compensation to which and confirmed and spread upon the records, the city may be entitled for such part of its and that judgment be entered against each property as is taken for the improvement. of the lots, blocks, and tracts of land located This proceeding is exclusively under the within the district, in accordance with said drainage act of May 29, 1879, as shown by corected assessment roll of benefits; and or- the prayer of the petition. Section 5 of the dered that the assessment roll be payable in act (Hurd's Rev. St. 1903, C. 42) provides that, ten equal annual installments, etc., and that

on the hearing of the petition, "all parties the clerk of the court certify the corrected through or upon whose land any of the assessment roll of benefits, together with the proposed work may be constructed, or whose judgment, to the commissioners. To this land may be damaged or benefited thereby, order and judgment of the court overruling may appear," etc. Section 9 provides that its objections, and to the assessment of ben

the commissioners shall examine the land. efits upon its said lots and the streets owned and determine what lands will be injured by it, the city of Joliet excepted. The pres

by the proposed work, and the probable agent appeal is prosecuted from such judgment gregate amount of damages such lands will of confirmation.

sustain, etc., and whether the proposed dis

trict will embrace all the lands that will be James A. McKeown, City Atty., and Robert

damaged or benefited by the proposed work. E. Haley, for appellant. S. J. Drew, for

Section 16 provides that the jury therein appellee.

mentioned shall make their assessments of FARMER, J. (after stating the facts). It

damages, or damages and benefits, as the clearly appears from the steps taken in this ·case may be. Section 17 provides that the proceeding, as set forth in the statement pre

jury shall ascertain the damages and beneceding this opinion, that certain property

fits, etc., and also provides that, “in case belonging to the city of Joliet must be taken

damages are allowed to and benefits asor damaged for the purposes of this improve

sessed against the same tract of land, the ment. The corrected assessment roll shows

balance, if any, shall be carried forward to that lots 16, 17, 18, 19, and 20, belonging to

a separate column for damages or benefits, the city of Joliet, and conceded to be school

as the case may be.” Section 19 provides lots, are each assessed $181, “except portion

that the jury shall fix the time for the corfor channel, as shown by 'Exhibit A,' filed

rection of their assessment, after they have September 18, 1903." This is an admission

"completed their assessment of damages and

benefits." that a part of said lots, or some of them,

Here, however, there is nothing will be taken for the new channel proposed

to show the extent of the compensation to to be constructed by the drainage district.

be paid to the city, or the damage suffered Indeed, the county court, by its order entered

by it, for the part of its school lots and on June 9, 1904, found that the assessment

streets taken or damaged. In this respect roll included assessments levied in part

there is a failure to comply with the proviagainst property "which will be actually sions of the act. On the contrary, the astaken for the purposes of said drainage dis- sessments, as originally made against the trict," and that such method of making the school lots, were made as well against the assessment of benefits was contrary to law. parts thereof to be taken for the improveThe description of the amounts, assessed ment, as against the remaining portion not as benefits against the streets of the city of taken. It was certainly erroneous to charge Joliet located within the boundaries of said the city with an assessment against such district, especially excepts "portion for chan- portion of its land as was taken for the nel, as shown by 'Exhibit A,' filed September improvement. When, however, the assess18, 1903.” The very terms of this descrip- ment was corrected, so as to make it an tion are an admission that a portion of the

assessment against the land not taken, the streets of the city will be taken for the pur- amount was permitted to remain the same. pose of constructing the new channel to be That is to say, the original amount assessed constructed by the district. A reference to against the whole lot, both taken and not the map, referred to in the description as taken, was exactly the same, after the cor"Exhibit A,” shows that the new channel rection was made so as to leave out the part will take part of lots 16 and 17. The same taken. Five lots, 16, 17, 18, 19, and 20, are map shows that parts of a street, called shown by the plat to be all of the same size, "Dillman Avenue," and of another unnamed and yet the amount assessed against the street in the city, will be taken for the pur- three lots, of which no part was taken, is poses of the drainage district. The proof the same as the amount assessed against also shows that certain bridges, erected by the two lots from which a portion was to the city, will necessarily have to be removed be taken. in order to construct the channel required We have held in repeated decisions that by the new drainage district. But nowhere the provisions of the act under which the in the proceedings, set forth in the state appellee is organized, commonly known as ment preceding this opinion, is any provision the "Levee Act," for the assessment of dammade for ascertaining the amount of dam- ages to landowners, either by the jury thereages which will accrue to the property of the in provided for or by the commissioners, are

unconstitutional and therefore inoperative of benefits as to land a part of which is and void. Wabash Railroad Co. v. Coon to be taken by the construction of the ditchRun Drainage District, 194 Ill. 310, 62 N. E. es, until after they have caused the damages 679; Juvinall v. Jamesburg Drainage Dis- for the land taken to be assessed by a jury trict, 204 Ill. 106, 68 N. E. 410; Michigan under the eminent domain act, and until after Central Railroad Co. v. Spring Creek Drain- the jury in that proceeding has determined age District, 215 Ill. 501, 74 N. E. 696; whether the land not taken is damaged. Hutchins v. Vandalia Levee & Drainage Dis- In the condemnation proceeding the landtrict, 217 Ill. 561, 75 N. E. 351; Stack v. owner must be awarded the value of the People, 217 Ill. 220, 75 N. E. 347; Hull v.

land taken, irrespective of the effect of takSangamon River Drainage District, 219 Ill. ing it upon the land not taken. It is the 454, 76 N. E. 701. Appellant contends that, duty of the jury also to determine whether in view of these decisions, there is no power the land not taken is damaged above any or authority for making an assessment of

benefits that may accrue to it by reason of damages to lands taken or damaged by a

the proposed improvement, and, if it is, to drainage district organized under the levee

allow that amount as compensation to the act in the act itself; that the district can

landowner. If the jury find the benefits not invoke the eminent domain act for the

exceed the damages, then they can only purpose of condemning property for right

find that the land not taken is not damaged, of way and assessing damages; and that,

for they have no power to assess the benefits. until there is additional legislation, land

After the termination of the condemnation cannot be taken or damaged for a drainage

proceedings, if it has been found in such district except by consent of the property proceedings that the land not taken is damowner. We cannot agree with this view. It

aged, this would preclude any assessment of was decided, in Cleveland, Cincinnati, Chi

benefits against it by the drainage comcago & St. Louis Railway Co. v. Drainage

missioners, because it is a determination District, 213 Ill. 83, 72 N. E. 684, and Hutchins

that the property is damaged to the extent v. Vandalia Levee & Drainage District, supra,

of the amount awarded the owner as comthat a drainage district organized under the

pensation therefor, above any benefits that levee act, not only had the authority, but

may have accrued to it because of the imthe proper method of securing the right of

provement. If, however, it is found in the way for the ditches of the district, and as

condemnation proceeding that the land not sessing the damages therefor, is to proceed

taken is not damaged, this does not amount under the eminent domain act. In the Hutch

to a finding that it is not benefited, or ins Case it was held that this could not be

that the damages and benefits are equal. done under the petition for the organization

If the jury should find, from the evidence, of the drainage district, but that the petition must be filed under the provisions of the

that the land was benefited in excess of the

amount it was damaged, their verdict could eminent domain act. After the organization

only be that the land was not damaged, for, of the district it may proceed, in accordance

as we have before said, in a condemnation with the provisions of that act, to condemn

proceeding the jury cannot assess benefits. the right of way for its ditches and assess

Their duty as to land not taken is to dethe compensation to the owner of the land for the land actually taken and the damages

termine, everything considered, whether the

property will be damaged by the proposed to the land damaged and not taken. Under the order of the court in this case the com

improvement. In cases where it is determin. missioners were directed to assess benefits

ed that land not taken is not damaged, we against the lands within the district. Mani

are of opinion the commissioners may then

proceed to examine it and determine whether festly, they could not assess benefits against lands a part of which was to be taken by

it is benefited, and, if so, assess the bene

fits. the improvement until after the damages

It may be said this would involve a had been assessed by a jury in a condemna

consideration of damages caused by taking tion proceeding, for the assessment of benefits

a part of the land in order to determine before this was done would necessarily in

whether the land not taken is benefited. volve a consideration of the damages that This is not correct. The question of whether would accrue to the land by reason of taking

the land not taken is damaged has already a part of it, and also of whether the part

been determined in a proper proceeding, not taken was damaged. The Constitution

and it has been found not damaged. In provides that "private property shall not such case the commissioners have no power be taken or damaged for public use without

to consider the question of damages. All just compensation. Such compensation, when they can do is to determine whether the not made by the state, shall be ascertained land not taken is benefited, and this no by a jury, as shall be prescribed by law." more involves a consideration of damages The eminent domain act is the law pre- than does the assessment of benefits to all scribed for determining and making com- other lands in the district. pensation in such cases.

These views are sustained by City of We see no reason why the drainage com- Chicago v. Mecartney, 216 Ill. 377, 75 N. E. missioners may not withhold any assessment 117. In that case the city of Chicago filed a petition to condemn a part of Mecartney's | wholly outside the corporate limits of the land under the provisions of the city and city of Joliet, at other places along the line village act providing for making local im- of its corporate limits, and at still other provements by special assessment (Hurd's places running inside the corporate limits Rev. St. 1905, c. 24). On the trial the jury of said city. In order to utilize it for the awarded him compensation for the land purposes desired, a portion of the city of taken and found there was no damage to the Joliet was included in the drainage district, remainder. The city then filed a supple- and, as will be seen from the statement mental petition for a special assessment preceding this opinion, the city was assessed upon the property benefited by the improve- | $3,800 for benefits to certain of its streets. ment, and commissioners were appointed | Appellant contends there is no authority to make the assessment. They returned given by the levee act, or elsewhere, to an assessment roll assessing benefits to the include a part of a city organized, as approperty of Mecartney. He filed objections | pellant is, under the city and village act to its confirmation, and, among them, claim- of 1872, within and make it a part of the ed that on the trial in the condemnation drainage district. The basis for this conproceeding evidence was heard by the jury tention is that the city of Joliet is an oras to benefits that would accrue to his prop-ganized municipality under the city and erty from the improvement, and that it was village act, possessing full power and au: considered by the jury that such benefits thority over the subject of drainage within were an offset to the damages to the land not its territory, and that its territory cannot taken; that this was res judicata, and the be invaded and a portion of it included in judgment in the condemnation proceeding a drainage district composed of territory was a bar to the proceedings by the com- lying partly outside the corporate limits of missioners to

to assess benefits. These ob the city. In People ex rel. v. Nibbe, 150 Ill. jections were tried without a jury, and the 269, 37 N. E. 217, it was held that under the trial court held that the issues presented farm drainage act a drainage district had had been litigated and determined in the the right to take in territory already organized condemnation proceeding and sustained the under the general law in relation to cities objections. This court reversed that judg- and villages. It is not denied that property ment, and said (page 381 of 216 Ill., and already appropriated to one public use may page 118 of 75 N. E.): "If the jury in a con- also be subjected to another public use if demnation proceeding award damages for granted by the lawmaking power in express property not taken, the judgment is con- terms or by necessary implication. In the clusive against a subsequent proceeding to case last above cited, the court said: “The assess it for benefits, because the judgment provisions of these sections [section 11 of is conclusive that there are damages and the farm drainage act (Hurd's Rev. St. 1905, not benefits; but, where a jury simply find c. 42, § 85) and subsequent sections] are that there are no damages, the verdict and sufficiently broad to embrace any and all conjudgment are not and cannot be conclusive tiguous territory within a town which is so that there are no benefits. The fact that circumstanced as to require a combined sysproperty is greatly benefited and doubled tem of drainage for agricultural or sanitary in value by an improvement is not incon- purposes, wholly irrespective of whether any sistent with a verdict that it is not damaged, portion of it is already included within the but perfectly consistent with it. It would boundaries of a pre-existing municipal corseem to be an absurdity to say that the poration or not. And we know of no other finding of a jury that the property of de. provision of the statute, and are referred to fendant in error was not damaged was also none, by which any further limitation in a finding that it was not benefited-a ques- this respect is imposed." As we read the tion which the jury could not legally con- two acts, the power granted under the levee sider. The purpose and effect of this pro- act is as extensive as that under the farm ceeding are different. The commissioners drainage act. Section 2 of the levee act were required to assess against the lots of (Hurd's Rev. St. 1905, C. 12) authorizes a defendant in error the benefits that would majority of the owners of lands, representaccrue from the improvement. They were ing one-third in area, within a district pronot authorized to award damages for de- posed to be organized for agricultural, sanpreciation of the lots resulting from the tak- itary, or mining purposes, in a combined ing of a part of them; the fact that there system of drainage or protection from overwere no damages having been determined in flow, to file in the county court a petition for the condemnation proceeding." We see no the organization of a drainage district. Secreason why drainage commissioners may tion 3 provides for giving notice of the filing not pursue the same method in making as- of the petition. Section 4, for the jurisdicsessments that were pursued in that case. tion of the county court, and section 5, for

Spring creek is a natural water course, and the hearing and finding of the county court it is proposed to widen and straighten its and the appointment of commissioners. Subchannel so as to increase its capacity to sequent sections provide for the procedure carry the waters of the district. Said creek until the district shall have been declared is a crooked stream, at some places being organized and for the assessment of damages

*

or benefits that will be sustained by or ac- It then remains to be determined whether crue to the lands affected. There is no ex- the drainage district authorities had power to press grant in the act to include in a drain- assess benefits against the city of Joliet withage district territory embraced within the out the consent of said city and over its corporate limits of a city, nor is any excep- objections. We are unable to find any such tion made as to such territory. The same is authority in the act under which the appellee true of the farm drainage act, and if the is organized. Section 55 of the act aupower under that act is granted, by implica- thorizes the assessment of benefits against tion, to include in the district contiguous "any public or corporate road or railroad" territory lying within an incorporated city and apportioning to "the county, state or or village and so situated as to require a free turnpike road, to the township, if a combined system of drainage and protection township road, to the company, if a corporate for agricultural and sanitary purposes, the road or railroad, such portions of the cost same power must necessarily be held to be and expenses thereof as to private individconferred by the levee act.

uals." Said section further provides that the It is said by appellant that Bishop V. amount assessed against "any railroad comPeople, 200 Ill. 33, 65 N. E. 421, overrules

pany or private corporation shall, upon the People ex rel. v. Nibbe, supra. This is a confirmation of the assessment roll by the misapprehension. Other acts of the Legis- county court, become a lien upon the real lature, independent of the city and village property of such railroad company or private act, confer power upon the corporate au- corporation, and have the same force and thorities of cities and villages to divide their effect as a judgment at law in favor of such territory subject to overflow, into districts, district against such railroad company or and to construct, maintain, and keep in re- private corporation, and execution may issue pair drains, ditches, and levees by special thereon as upon judgments in courts of recassessment upon the property benefited there- ord in other cases, and shall have a like lien by. It is not claimed that the city of Joliet

upon personal estate.

In case such had organized the territory included in the assessment is made against any township in drainage district under any act of the Legis- this state the commissioners of highways of lature for drainage purposes or to prevent such town shall cause the same to be levied overflow. All it had done was to build and paid to said district in the manner probridges where streets crossed Spring creek, vided by sections 13, 14, 15 and 16 of an act construct one sewer which emptied into the entitled, 'An act in regard to roads and creek, and build a wall along the west line bridges in counties under township organizaof the channel 512 to 6 feet high for the tion, and to repeal an act and parts of acts distance of about three blocks. This wall therein named,' approved June 23, 1883, or is tumbled down in some places and is not in such manner as may now or hereafter be in a good state of repair. It had also con- provided by law." (Hurd's Rev. St. 1905, c. structed some catch-basins on one or more 121.) The remainder of said section relates streets, emptying into the creek. No work

to the powers and duties of the respective appears to have been done to increase the

parties with reference to the removal of capacity of Spring creek, which overflows in bridges where such removal is found necestime of high water, to carry off the water sary in the construction of the work. The that came into it. In the Bishop Case, su- sections of the road and bridge act referred pra, the part of the city of Mattoon sought to provide for the levy and collection of to be embraced in the drainage district was road and bridge taxes and the amount reincluded within one of the drainage dis- quired to liquidate road and ditch damages. tricts of the city, and the city had expended In Drainage Com’rs v. Village of Cerro a large sum of money in straightening and Gordo, 217 Ill. 488, 75 N. E. 516, the commisdeepening Kickapoo creek, which was the sioners of the drainage district, which was ditch sought to be used by the drainage organized under the farm drainage act, made district. In that case the court said: “The an order attaching certain portions of the city having assumed jurisdiction over that incorporated village of Cerro Gordo to and part of the creek or ditch within its corpo- making them a part of the drainage district rate limits, that jurisdiction must, for the on the ground that the village authorities use to which it has been put by the city, be had connected the drains and ditches of the exclusive." Here the case was different. village with the drainage district ditches and The portion of the territory of the city sought had tiled a part of the streets into the ditches to be embraced within the district had not and drains of the drainage district. The been organized by the city of Joliet as any commissioners classified the streets and alpart of a district for drainage purposes. It leys of the village so attached to the district, had done nothing more than empty one of under the provisions of the act concerning its sewers into the creek and empty surface farm drainage, and by an assessment roll water from some of its streets, by means of assess against the village for benefits the catch-basins, into the creek. The channel of sum of $976.66. The village refusing to pay the creek remained, as it had been, in a the assessment, an action at law was brought state of nature,

by the drainage commissioners to recover it.

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