THE MORGAN CREEK DRAINAGE DISTRICT, Defendant in Error, vs. FRANK O. HAWLEY, Plaintiff in Error.

Opinion filed April 23, 1909-Rehearing denied June 2, 1909.

I. APPEALS AND ERRORS—when bill of exceptions is not necessary. A bill of exceptions is not necessary for the consideration and determination of such errors as appear from the record itself, but in the absence of a bill of exceptions no errors not appearing on the face of the record can be considered.

2. DRAINAGE oath to be taken by commissioners limits assessment of benefits. The oath to be taken by drainage commissioners under section 17 of the Levee act limits the assessment of benefits to lands embraced in the proposed district “against which no damages have been allowed," and hence if part of a tract of land has been taken for right of way and compensation therefor has been agreed upon, the assessment roll should not show an assessment of benefits against the entire tract. (Gauen v. Drainage District, 131 Ill. 446, distinguished.)

3. SAME-commissioners cannot make assessment for amount greater than estimated cost. Levee drainage commissioners have no power to make an assessment which exceeds the amount approved and confirmed by the court as the estimated cost of the work and the proceeding, and the court is without jurisdiction to confirm an assessment for such greater amount.

4. SAME when party cannot raise question that no order to commissioners to secure right of way was made. One who agrees with levee drainage commissioners on a right of way over his land and executes a release of damages in consideration of their agreement to pay him the price fixed upon is not in a position to object to the confirmation of the drainage assessment on the ground that the commissioners proceeded to secure the right of way for the ditches of the district without an order of the court to do so.

WRIT OF ERROR to the County Court of Kendall county; the Hon. WILLIAM HILL, Judge, presiding.

This is a writ of error sued out of this court to review a judgment of the county court of Kendall county confirming an assessment made by the drainage commissioners of Morgan Creek Drainage District, a drainage district organized under the Levee act.

Upon the presentation of the petition for the organization of the district the court found it in compliance with the requirements of law and appointed commissioners to lay out the district. The commissioners so appointed filed their report, and July 29, 1907, was fixed as the date for a hearing upon said report and notice given accordingly. Plaintiff in error and others filed objections to this report of the commissioners, but the objections were overruled and the report approved and confirmed and the district declared organized. The report stated that "the probable cost of the work mentioned in the said petition herein described, including all incidental expenses and the cost of proceedings therefor, will be the sum of, to-wit, $19,339.80, in accordance with the surveyor's estimate, marked 'Exhibit C' and hereby made part of this report." It was further stated in the report that the cost of keeping the ditches in repair would not exceed $100 per year; that the lands in the district would be benefited by the proposed work and that the benefits would exceed the cost of constructing the work.

No order appears from the record to have been made by the court directing the commissioners to procure the right of way for the ditches, but said commissioners proceeded to do so, and under date of July 23, 1907, secured the signatures of a considerable number of land owners to an agreement consenting that the ditches might be constructed across the lands owned by the parties, respectively, in accordance with the plans and profiles. The consideration for this release was the mutual benefits to be derived by the parties from the construction of the ditches.

Under date of September 7, 1907, plaintiff in error and the commissioners agreed upon $500 damages for the right of way across his lands, and in consideration of the payment of that sum plaintiff in error released the right of way over his lands for the ditches. On November 2, 1907, the commissioners agreed with J. N. Wayne, a land owner in the district, to pay him $650 for the right of way across

his land, and he signed an agreement releasing said right of way. On November 2, 1907, the commissioners filed a report stating that in accordance with the order and direction of the court they went upon the land of the district for the purpose of securing the right of way for the proposed ditches. The report states the commissioners had agreed with plaintiff in error to pay him $500 for the right of way and to pay Wayne $650. The report also recommends some changes in the plan of the work in accordance with the request of a petition signed by the land owners, and some other changes in the depth and curve of certain portions of the ditches to accelerate the flow of the water. This report was approved by the court the day it was filed.

On the fourth of November, 1907, the commissioners took and subscribed the oath as commissioners of said district and also to make an assessment of benefits to lands embraced in the district. The oath to make the assessment was in the following form: "We, and each of us, do further solemnly swear that we will faithfully and impartially make an assessment of the benefits to the lands embraced in the said proposed, district according to law." On the 25th day of November, 1907, the commissioners filed their assessment roll, showing a total assessment of $20,662.50. Something over $7000 of this amount was assessed against the lands of plaintiff in error. He and others filed objections to the confirmation of the assessment roll.

The judgment recites "that all objections filed, except objections to the amount of the assessment, are not well taken and were and are hereby overruled." The judgment further recites that at the conclusion of the hearing the commissioners retired to consider objections made to the assessment of benefits, and made such amendments to the assessment roll as the commissioners thought just and equitable under the law and the evidence, and thereafter, on December 17, 1907, filed a corrected assessment roll, and the assessment roll as corrected was approved and ordered

spread upon the records of the court. The correction in the assessment roll consisted of a reduction of the amount of benefits to thirty acres of plaintiff in error's land which had been erroneously assessed as a larger tract, and reduction of benefits assessed to lands owned by three other parties. The total reduction amounted to $742.50, and left the total amount of benefits assessed $520.30 greater than the estimated cost of the work and expense of the proceeding. On the 26th of December, 1907, plaintiff in error and others filed their motion in the county court, with their reasons in support thereof, to set aside and vacate the judgment of confirmation and for a rehearing upon the assessment roll. This motion appears to have been continued from time to time, and on the 4th of March, 1908, the same parties, by leave of court, filed additional reasons in support of their motion, and on the same day a judgment was entered overruling the motion. Objectors prayed an appeal, which was denied, and this writ of error was sued out.

A. H. SWITZER, (J. IVOR MONTGOMERY, of counsel,) for plaintiff in error.

JOHN M. RAYMOND, and JOHN K. NEWHALL, for defendant in error.

Mr. JUSTICE FARMER delivered the opinion of the court:

No bill of exceptions is incorporated in the record, and therefore only such errors assigned as are shown by the record are subject to review by this court.

It is objected that the oath taken by the commissioners to assess benefits was not the oath required to be taken by the statute, and that in making the assessment the commissioners assessed benefits against lands of plaintiff in error taken for right of way for the ditches. Section 17 of the Levee act provides that after the damages have been agreed upon and approved by the court, "the commissioners shall be sworn to faithfully and impartially make an

assessment of the benefits to the lands embraced in said proposed district and against which no damages have been allowed." It will be observed from the copy of the oath above set out that the commissioners were sworn to assess benefits to the lands in the proposed district, but the requirement of the statute, "against which no damages have been allowed," is not embraced in the oath.

The ditches of the district, as shown by the record, run. through a large amount of plaintiff in error's lands. The main ditch is ten feet wide at the bottom, the north branch six feet wide at the bottom, the south branch eight feet wide at the bottom, and all have side slopes of one to one. The report of the commissioners gave the width of the right of way of the main ditch at seventy feet and the two branches each fifty feet. The release of plaintiff in error was for sufficient land for the ditches and also sufficient land upon which to deposit the earth excavated, far enough from the channel to leave a six-foot berm on each side. This required taking several acres of his lands, but in the assessment roll each tract is described as a whole and benefits assessed against it in a lump sum. It does not appear from the assessment roll that any reduction in acreage or the amount of benefits assessed, on account of land taken, was made. Apparently the full acreage in each tract is assessed for benefits, and the fact that a portion of several of said tracts was taken for the ditches was overlooked by the commissioners.

In Durham v. Mulkey, 59 Ill. 91, one of the questions before the court was the requirement of the oath of commissioners to assign dower and the necessity of the oath appearing in the record. The court said, on page 93: "Their [commissioners'] report states they were duly sworn

in

open court, but the report, as well as other portions of the record, fails to show the character of the oath they took. Whether it conformed to the requirements of the statute or not nowhere appears. The statute is peremptory