Rensselaer Republican, Volume 25, Number 31, Rensselaer, Jasper County, 30 March 1893 — IROQUOIS DITCH. [ARTICLE]

IROQUOIS DITCH.

WITH SOME OBSERVATIONS ON THE NEW DITCHING LAW. Mr. Editor: In October 1892 some three score land owners filed an appliication, by signing a petition and bond for an improvement of the Iroquois valley above College street in the town of Rensselaer, Ind. The law included in said petition such side, lateral, spur and branch ditches as would fully secure the object of the improvement petitioned for. Each petitioner asked an outlet reasonably convenient to his own land, on the best route. The petitioners’ lands are located in eight congressional townships and the improvement prayed for is of no small magnitude. The questions now up for discussion and to be settled by the Board of Commissioners next week, are as follows: 1. Does the report of the viewers show the best route for drains which, when constructed, will secure fully the object of what the petitioners asked for? 2. Can a sufficient outlet be secured on the route proposed so that all laterals can be provided with an outlet by building the main ehannel?

3. Will the improvement on the lines reported be conductive to the public health, convenience and welfare or is it necessary to improve and drain any lands, roads or railroads? The viewers have agreed upon the affirmative of each proposition. The matter comes up in review before the Board of Commissioners next week and the Board must be convinced and find: 1. That there is sufficient outlet existing or that such outlet will be provided by the improvement to drain the lands of those who signed the petition and bond. 2. That the improvement ought to be made; or else the application will be dismissed at the cost of the petitioners. In examining these two questions the Board will necessarily have to consider the rights of every petitioner, wherever he owns land.

If the Board orders the improvement to be made, two viewers at two dollars per day will proceed to prepare an assessment roll of benefits and damages by reason of the proposed improvement. An engineer will proceed to level, grade, profile, plat and estimate the work to be done at three dollars per day. The viewers and engineer must file their report within thirty days after the engineer’s work is completed. This report is brought before the board of commissioners after personal notice to each land owner who lives in the county, and by publication as to others mailing copies to known addresses. Should this second report be approved the contracts for construction are let and reported to the court for approval. The court then issues and sells bonds sufficient to repay all costs, which the county has paid, pay the damages and the contractor. The law requires that the lower portion of the drains shall first be made and in case of an extension improvement like this only enough bonds need be offered at once to pay for the lower seotion and others be sold as needed. If therQ are no formidable objections the lower section of the improvement can be completed this year.

The logic of the situation only for the subsidence of all passion and that reason baptized with a Holy public spirit have full sway. The location fixed npon across a tract of land may not quite suit the owner if : ilr runs diagonally. Any land owner would like the ditch to ran like a fence or road so as not to damage his land. The viewers and court however took at a ditch from start to finish and the effectiveness of the ditch as a whole demands that selfish notions be brushed away. The law, Sec. 16, requires of the viewers to avoid diagonal lines if the ditch is not made less effective. Each has a right to damages estimated on the basis of .quantity and direction. Sec. 5. The whble environment must be studied as every man above demands the “nearest and the best route.” Men may come, and men may go, but the ditch goes on forever in the same channel, if it be the best route.

Each petitioner’s purpose has been and still is to help make an improvement which the citizens of this town and this county can enjoy as a benefaction for all time. To reach a correct conclusion each of us must from necessity make haste slowly in a matter of such extensive public importance. A public ditch like a public highway before its construction must be located by the proper authority in order to avoid civil and criminal prosecutions so often provoked by a merely private ditching enterprise however well meant it may be. The constitution requires that compensation for right of way in a work of public utility can be assessed and tendered to owners of property. Sec. 66, R. S. 1881. By legal ditch proceedings we can avoid the penalty for trespass and obstructing highwaya Sec. 1565, Ell. Sup. 115 Ind. 417. There are always three items of cost in any public improvement to-wit: 1. Damages ta property. 2. Expenses of location and supervision. 3. The labor of construction.

These items are provided for in the law of 1891 on definite formula and fixed schedules of prices. After the contract is let, the surveyor and auditor perform the necessary duty of receiving and paying for the work at public expense and the county retains the money realized from sales of the bonds. Sec. 11,12 and 13. The county advances the expenses until the bonds are sold when the money realized goes into the treasury to repay the expenses, pay damages and pay the contractor. It is the settled policy of the law that interested persons shall not act, except by consent of all, as viewers. The viewers under this law are requirod to be disinterested persons. It is said that some of the petitioners wish to change the method of procedure now and commence a new procedure under the law of 1893. In order tp decide whether such a change would be desirable I have studied the law of 1893 as carefully as I could in the brief time I had to spare from my other duties. President Lincoln in plain phrase uttered a homely truth quite appropos to the present condition of the project:—“lts a bad plan to swap horses in the middle of a stream.”

So Unless the law of 1893 is much better, fairer and cheaper there is no merit in a swap. To the end that those who desire to do so may compare the laws of 1891 and 1893 we submit the following comments on the basis that under each law the same work is to be done with equal fairness to all concerned and effectiveness in results. If the whole district be not organized on petition it would have to be annexed from time to time and the prospect would be that years would elapse before reaching our present vantage ground. The law of 1893 would work nicely in a small neighborhood where but one line of ditch was contemplated and where the viewers and land owners were all a& friendly with each other as David and Jonathan were said to have been. These conditions do not we are sorry to say, here prevail. The territory is large; the relative location and quality of land not similar. The law of 1893 provides three instead of two officers at the same price, two dollars each per day. Sec. 3. These officers have full authority to employ assistants, engineers and attorneys without limit as to number or price. Seo. 12. There is no provision for payments to employes before incorporation is complete. Ooncediug that assistance under the new law of 1893 would cost the same (and it would coat more) as under the law of 1891, there is still two dollars per day In favor of the law of 1891 for the same labor.

Let us see what is required under the law of 1893 before granting the PETITION. The petition is defined as the organic law of the district and the whole charter of its authority. The lands of the whole district are made into one tract as between the district aDd all outsiders. Bec. 23. The petition must be signed by one third of the owners holding title to one half of the lands pr by one half the owners owning one third of the land. This could scarcely be done in the whole valley without a careful canvass; taking weeks of time. Section 1. The petition will necessarily have to describe all the lands, name all the owners and give the course, distance, grade and dimensions of all the the ditches, in order that the Board of Commissioners may decide as that law requires them to do from the petition and evidence whether there are enough signers; whether all non-signers have been notified, whether the ditches are necessary, whether they will be effectual, whether the costs will exceed the benefits and whether the lands described require a combined system of drainage. A noticejfor twenty days by posting and publication must be given describing the district and setting out the names. . v- . ' , In a district like this containing one hundred and fifty thousand acres the preliminary work of presenting the matter in such shape that the Board of Commissioners could give an intelligent judgment would not be small. It would cost in my opinion, more than utder the law of 1891.

By wliat means the cost of organization necessarily including engineers’ fees, attorneys’ fees, printer’s fees and the trials accorded in section 3 are to be paid; is a question that k this law does not answer. The petitioners fail to see that this improvement could be made as soon, as fairly and cheaply under the now law and hence favor moving forward to a hearing of the present report. In this country any citizen has a right to engage in a law suit. That costly luxury is accorded in section three of each law. The law of 1891 properly applies to ditches over fivo miles long while the law of 1893 is better adapted to private and small public ditches where the owners live in that mutual trust and confidence ascribed by the poet to the Acadians, in Evangeline. The assessment roll made by them (all interested persons) becomes the permanent and fixed basis for all future assessments. Sec. G. The same three officers have power moreover to amend the “original law” and “charter” of their authority as to the plan of ditching, the location, depth or width of any ditch. Sec. 7. The three officers also let the contract of excavation giving any land owner the preference. See. 8. Under the law of 1891 the sale is to the lowest bidder without a preference. A preference is usually a good thing for the one preferred and as few own dredges so ns to take advantage of such preference on a big ditch, that few would have a bonanza. >

The manner of doing the work rests with the same three officers. Sec? 12. (Suppose one of the officers was himself a bidder he could help to receive his own work,) The same officers allow an owner the value of his old ditch. Sec. 15. (Suppose one of the officers was also the owner of such old ditch it would again be a case of self judgment. ) They may enlarge the boundaries of the district by annexing new areas of land on a petition addressed to themselves. They may take in land owners along any line of ditch. Sec. 18. Section eighteen defines an extraordinary exercise of power. If a man suffers a ditch to remain on his land, it may be miles away from the district in the same water shed, for ninety days, he has under this law applied for the privilege oL being taxed, if the ditch touches the district even if was constructed years before the law of 1893 was passed. The same officers have exclusive cognizance and jurisdiction of all drainage. Sec. 19. This creates a blockade agaiDst all other proceedings above the district. One could no more locate a drain across the smallest corner of the district when formed than one can locate a highway in the usual manner in a city. As there is no limit to Che number of assessments which tbe officers can 1 make to raise funds, we don’t like the law as applied to this territory and den’t think it can be applied with any advantage outside of a favored circle of friends who have supreme confidence in eaoh other.

The nature and effect of ipjQQEptH'ation is the same whether accomplished by petition or by agreement under Sec. 22. This section requites the SURVEYOR to carefully consider, as he may see fit, all questions under the agreement, of two-thirds of the owners owing two-thirds of the land. Sec. 22. He shall become satisfied in his own mind in some way that all the lands need a combined system of drainage, that the costs will be less than the benefits, that the plan is practicable, that the agreement is fair and equitable, that the amounts proposed to be contributed by each petitioner are just in proportion to what other lands, not represented in the petition, should contribute considering the benefits separately as to each tract of land, and when satisfied on all these points he shall then endorse the agreement and file the same when it shall be made a matter of record. The record is said to organize the district and appoint the officers. The Surveyor then prepares % classification roil of lands within the tlistrict so that in his opinion all shall contribute a like sum in proportion to benefits making the ratio between benefits and construction IKe same in all cases, also assessing highways and railroads which may be benefited; personally viewing each tract of land, and railroad and when he has completed the roll he shall file it in the commissioners court and give notice by posting twenty days prior to the day set for hearing. All this the Surveyor must do without pay if acting as a public officer, the law provides no pay. If not acting as a public officer then he becomes a mere agent of private parties and yet is given the power to create a corporate district of drainage, appoint its officers and make its formula of taxation. Under Sec. 22, the district is proposed to be organized wholly without notice. This scheme would enable a few men with the consent of their own employees to organize a district covering a vital part of several long ditches and attach every body else both above and below along said ditches under Sec. 18 and 19. A ditch crossing the boundary of said central district would act like the arm of an octopus drawing in the landowners whether they were willing or not. As we now have jurisdiction under the law of 1891 over the whole Ircquois valley, v e think it would be very unwise to now surrender with a view of forming a corporation to obstruct the flow of water, at any point on a plea of exclusive jurisdiction.

OBSERVATION ON LAW OF 1893. 1. The means provided for obtaining the right of way, if contested, would take at least fifteen months for each case where no agreement was made. Sec. 14. 2. The extraordinary judicial power conferred on the county surveyor, acting under the employ of private persons will scarcely be assumed by him and hence organization under Sec. 22, is out of the question is this district. 3. The very extraordinary application of the doctrine of limitations and estoppel to all kinds of ditches, public or private which perchance may cross the boundary line of a district before it is organized will scarcely bear honest judicial scrutiny when applied to a large district like the Iroquois valley. Sec. 18. 4. The peculiar manner of crossing highways and railroads provided without assessing damages may not be agreeable to those who are compelled to maintain these easements. Sec. 17. 5. If the officers of the district can change the location and dimensions of ditches as described in the petition without consent of the incorporation whac assurance can they have that they will not be treated personally to high taxes and small ditches, according to the wishes of the interested officers. Sec. 7.

S. P. THOMPSON.

It has been said that supervisors make good roads along their own farms. 6. If a district can be organized in the middle of a region all having the same outlet, crossing various public ditches and water courses and can compcll the larger territory to be annexed to the smaller or the owners prevented from ditching their lands at all unless they first pay for enlarging the ditches of the district such sums as the interested officers thereof may exact as the cost of such enlargement, those above would be at the mercy of such district. 7. We find no provision for crediting any one for a public ditch appropriated by the proposed corporation. SecrTs. The law of 1893 has many novel features and to our mind will work badly in this great valley, provoking litigation, exacting payments before work is done, and will tend to divide, subdivide and retard a work which should proceed directly and surely as an unit toward com pletfon. .These officers of the corporation can draw a possible salary of over six hundred dollars per year each and have power to employ, and pay aids, etgineers and lawyers. Under the law of 1891 we can in a measure find in tbe law, in plain words, the fall amount of assessments that can be levied on our lands' but under the law of 1893 the whole matter ur left to

three men with power to repeat the. levies without limit. If what we have gained in this proceeding is now dropped to ran after a new project we are jafraid that many who may pin their faith to the involved corporate system of 1893, will in due course of time wonder “where they are at.” As soon as the Board of Commissioners decide on the location of the lines under this report, like public highways when established, they can be constructed in due form of law. Some of your readers know how long it took to establish the highway petitioned for by Halstead et al and yet there was no appeal to the big her court. ... .

March 27, 1893. r“ ——■-