of its service.1055 Where the laws are silent in respect to notice, its necessity will be implied for the reasons stated above.1056 In a New York case,' 1057 the court said, "It must be conceded that property cannot be taken by the right of eminent domain without some notice to the owner or some opportunity on the part of the owner at some stage of the proceeding to be heard as to the compensation to be awarded him. An act of the legislature arbitrarily taking property for the public good and fixing the compensation to be paid could not be upheld: there would in such case be the absence of that 'due process of law' which both the federal and state constitutions guarantee to every citizen. It may, however, be stated generally that due process of law requires an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard and to defend, enforce and protect his rights. A hearing or an opportunity to be heard is absolutely essential. We cannot conceive of due process of law without this." And, in a Pennsylvania case 1058 it is said that "notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property." § 450. Report of commissioners or viewers. The commissioners or viewers, providing their appointment be legal, after consideration of the evidence as produced by property owners, should file a report or findings in respect to the damages suffered by and benefits accruing to property with the compensation to which the owners may be entitled upon consideration of all legal conditions.1059 The form and substance of Hackett v. Brown, 128 Mich. 141, 87 1055 People v. Burnap, 38 Mich. 350; Town of Muskego v. Drainage Com'rs, 78 Wis. 40. Indianapolis & C. Gravel Road Co. v. Christian, 93 Ind. 360; Smith v. Smith, 97 Ind. 273. No report on lands not affected by a proposed drain need be made though such lands were described in the petition 1056 Strachan v. Brown, 39 Mich. for the improvement. Lipes v. Hand, 168. 104 Ind. 503; Claybaugh v. Balti 1057 Stuart v. Palmer, 74 N. Y. 183, more & O. R. Co., 108 Ind. 262; Bohr affirming 10 Hun, 23. v. Neuenschwander, 120. Ind. 449; 1058 City of Philadelphia v. Miller, Zigler v. Menges, 121 Ind. 99; Blem49 Pa. 440. el v. Shattuck, 133 Ind. 498; Lane v. 1059 Spahr v. Schofield, 66 Ind. 168; Burnap, 39 Mich. 736; Nugent v. this report100 and the time of its filing may be prescribed by law, 1061 and in addition, in some instances, notice to the property owner of the latter fact.1062 Such proceedings are usually strictly construed and a failure to observe statutory provisions may render them null and void. 451. Damages and benefits. In the appropriation of private property for a public use, for the damages suffered by the individual, the law affords a compensation full, ample and just, 1063 and in determining the benefits. Erb, 90 Mich. 278; Dakota County v. Cheney, 22 Neb. 437; Olmsted v. Dennis, 77 N. Y. 378. 1060 Goodrich v. Stangland, 155 Ind. 279, 58 N. E. 148. A report is not invalid because it embraces branch drains not expressly petitioned for. 1961 Sarber v. Rankin, 154 Ind. 236, 56 N. E. 225. An extension of time may be obtained, following Bondurant v. Armey, 152 Ind. 244. 1062 Crapo v. Hazelgreen (C. C. A.) 93 Fed. 316; Claybaugh v. Baltimore & O. R. Co., 108 Ind. 262; Munson v. Blake, 101 Ind. 78. "No order was made at any time by the court extending or changing the time so designated. Commissioners of drainage cannot under this statute, violate or ignore the order of the court fixing the time for the filing of their report and present a report when it suits their pleasure or convenience. To permit them to do so, would render the statute subject to great abuses. It would, in many cases, result in requiring the constant attendance in court of persons desiring to remonstrate against the report and ceaseless vigilance on their part to avert action thereon in their absence. No such inconveniences or perils should be imposed upon them and none will be imposed if the pro vision of the statute is, as it must be complied with." 1063 Harward v. St. Clair & M. Levee & Drainage Co., 51 Ill. 130; Elmore v. Drainage Com'rs, 135 Ill. 269; McCaleb v. Coon Run Drainage & Levee Dist., 190 Ill. 549. The cost of constructing farm bridges across a drain is not to be included in an estimate of the damages. See, also, the case of Heffner v. Cass & Morgan Counties, 193 Ill. 439, 58 L. R. A. 353, as discussing the liability for cost of rebuilding bridges removed by commissioners in constructing a drain or ditch along natural depressions or watercourses. Culbertson v. Knight, 152 Ind. 121, 52 N. E. 700; Duke v. O'Bryan, 100 Ky. 710, 39 S. W. 444, 824; Landry v. McCall, 3 La. Ann. 134; Day v. Hulburt, 52 Mass. (11 Metc.) 321. Those not parties to drainage proceedings cannot be affected by any finding of damages. Nevins v. City of Fitchburg, 174 Mass. 545, 47 L. R. A. 312; Bungenstock v. Nishnabotna Drainage Dist., 163 Mo. 198, 64 S. W. 149; People v. Nearing, 27 N. Y. 306; People v. Haines, 49 N. Y. 587; Watson's Ex'r v. Pleasant Tp., 21 Ohio St. 667; Askam v. King County, 9 Wash. 1; Skagit County v. McLean, 20 Wash. 92, 54 Pac. 781; Smith v. Gould, öi Wis. 31. A accruing to private tracts of land it is proper to take into consideration whatever, through the construction of the improvement, will tend to make the land more valuable for tillage, more convenient or desirable as a place of residence or whatever may increase its general market value.1064 The setting off of these special benefits against the damages that may be suffered by the same property will be controlled by the decisions of each state in respect to the exercise of the power of eminent domain as touching such questions.1065 The limits of this work forbid a more extended reference to the cases. § 452. Assessments and methods of apportionment. The construction of a drain or ditch is usually considered a local improvement and its cost is, therefore, levied upon the property benefited 1066 according to the measure or standard as suggested in preceding sections, 1067 the measure of "benefits received" being its location as adjoining property,1068 its propinquity,1069 its superficial area,1070 its frontage upon the proposed improvement1071 or the actual benefits received as determined by evidence produced and bearing upon the question.1072 The legality of these 1064 Winkelmann v. Drainage Dist., 24 Ill. App. 242; Culbertson v. Knight, 152 Ind. 121, 52 N. E. 700; Wilson V. Talley, 144 Ind. 74; Poundstone v. Baldwin, 145 Ind. 139. 1065 Lovell v. Sny Island Levee Drainage Dist., 159 Ill. 188; McCaleb v. Coon Run Drainage & Levee Dist., 190 Ill. 549; Elgin, J. & E. R. Co. v. Hohenshell, 193 Ill. 159; Trittipo v. Beaver, 155 Ind. 652, 58 N. E. 1034. Where the statutes direct damages to be paid out of assessments for benefits, a showing that the total damages will exceed the total benefits may warrant a dismissal of the proceedings. Pittsburgh, C., C. & St. L. R. Co. v. Machler, 158 Ind. 159, 63 N. E. 210; Lancaster v. Leaman, 110 Ky. 251, 61 S. W. 281; Peck v. Watros, 30 Ohio St. 590. 1066 Gilkerson v. Scott, 76 Ill. 509; People v. Keener, 194 Ill. 16; Cypress Pond Drainage Co. v. Hooper, 59 Ky. (2 Metc.) 350; In re Kingman, 153 Mass. 566, 27 N. E. 778, 12 L. R. A. 417. It is not necessary to determine a measure for the apportionment of the cost of a drain in advance of the levy of an assessment, following City of Lowell v. Oliver, 90 Mass. (8 Allen) 247; Lien v. Norman County Com'rs, 80 Minn. 58, 82 N. W. 1094; Tidewater Co. v. Coster, 18 N. J. Eq. (3 C. E. Green) 518. 1067 See §§ 337 et seq., supra. 1068 Spear v. Drainage Com'rs, 113 Ill. 632; Lipes v. Hand, 104 Ind. 503. 1069 Chambliss v. Johnson, 77 Iowa, 611; Blue v. Wentz, 54 Ohio St. 247. 1070 Moore v. People, 106 Ill. 376. 1071 Gray v. Town of Cicero, 177 Ill. 459. 1072 Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112. An ad valorem assessment of lands benefited will various methods by which the cost of the ditch or drain is apportioned have been tested and determined. 1073 An apportion-ment of the cost, if made in a uniform manner upon all property affected, whatever may be the measure or standard for determining its proportion, will be legal and an assessment collected in be constitutional, not depriving persons assessed of property without due process of law. Reclamation Dist. No. 537 v. Burger, 122 Cal. 442, 55 Pac. 156; Reclamation Dist. No. 108 v. West, 129 Cal. 622, 62 Pac. 272; People v. Wild Cat Drainage Dist. Com'rs, 181 Ill. 177. A landowner subsequently connecting his private drain with a public ditch can be required to pay his proper proportion of the cost of its construction as based upon benefits received. See, also, People v. Drainage Dist. No. 5, 191 Ill. 623, as holding that under such circumstances landowners will be considered as voluntarily included in the drainage district and their lands will, therefore, be subject to the proper proportion of the assessment. Osborn v. Maxinkuckee Lake Ice Co., 154 Ind. 101, 56 N. E. 33; Beals v. James, 173 Mass. 591, 54 N. E. 245. A failure to receive benefits will relieve land from a liability for the special assessment. Dodge County v. Acom, 61 Neb. 376, 85 N. W. 292; People v. Jefferson County Ct., 56 Barb. (N. Y.) 137; Peck v. Watros, 30 Ohio St. 590. 1073 Sarber v. Rankin, 154 Ind. 236, 56 N. E. 225. An irregularity in the acceptance of work will not relieve property receiving benefits of a drain from a payment of its proper proportion of the cost. Oliver v. Monona County, 117 Iowa, 43, 90 N. W. 510; Lien v. Norman County Com'rs, 80 Minn. 58, 82 N. W. 1094. "The authority of the legislature to enact drainage laws is derived from the police power, the right of eminent domain or the taxing power, and is undoubted. It is founded in the right of the state to protect the public health and provide for the public convenience and welfare. The authority is uniformly recognized and sustained by the courts upon one of the three grounds. There is not full harmony as to the grounds on which the laws are sustained; some courts placing the power to enact them upon one and some upon another ground. But all agree in sustaining them when enacted in the interest of the public health, convenience or welfare. Where the laws have for their object the reclamation of large tracts of wet and swampy lands for agricultural purposes, they are sustained under the right of eminent domain. The fact that large tracts of otherwise waste lands may be thus reclaimed and made suitable for agricultural purposes is deemed and held to constitute a public benefit. When the object is to drain such lands in the interest of the public health and welfare, such laws are sustained and upheld as a proper exercise of the police power. The test as to the validity of such laws is found in the objects and purposes thereof. When for a purely private purpose, they are invalid and unenforceable. The legislature has no power to exercise the right of eminent domain, the police power or the power of taxation for private purposes; and unless the act un- 1074 the manner provided by law from the property thus charged." The principles controlling and regulating the enforcement and collection of special assessments will also control this particular one.1075 Such provisions are generally strictly construed operat der consideration has for its objects the furtherance of public interests, it cannot be sustained. In all cases where such laws are author ity to provide for assessing the cost and expense of the improvement against the lands benefited follow as a natural result. The power to so assess the cost of the improve ments against lands benefited is a necessary and proper incident to the exercise of the power to make the improvement. And a statute providing therefor is not open to the constitutional objection that it is unequal taxation." 1074 Weinreich v. Hensley, 121 Cal. 647; First Nat. Bank of Sterling v. Drew, 191 Ill. 186, 60 N. E. 856. An assessment including indebtedness incurred before it was made is illegal. Hammond v. People, 178 Ill. 254. Assessments in excess of the cost as originally determined are, however, illegal. Laverty v. State, 109 Ind. 217; People v. Keener, 194 Ill. 16; Storms v. Stevens, 104 Ind. 46; Lock wood v. Ferguson, 105 Ind. 380; New Orleans Canal & Banking Co. v. City of New Orleans, 30 La. Ann. 1371. An exemption from drainage assessments is illegal. Clapp v. Minnesota Grass Twine Co., 81 Minn. 511, 84 N. W. 344; Baltimore & O. & C. R. Co. v. Wagner, 43 Ohio St. 75. Notice to the party charged is necessary. State v. Henry, 28 Wash. 38, 68 Pac. 368. School lands are not exempt from their proportionate part of the construction of drainage ditches under Wash. Laws 1895, p. 142. 1075 Lower Kings River Reclamation Dist. v. McCullah, 124 Cal. 175. It is not necessary to describe land in an assessment list by its smallest legal subdivisions. Hammond v. People, 178 II. 254. Costs incurred in enforcing a lien for drainage assessment will follow the decree. People v. Keener, 194 Ill. 16. Objections to the collection of a drainage assessment may be made jointly by several landowners where the reasons are the same. New Eel River Draining Ass'n v. Durbin, 30 Ind. 173; Studabaker v. Studabaker, 152 Ind. 89, 51 N. E. 933. "The complaint proceeds upon the theory that the installment of the benefits assessed against the land of appellant, for the payment of which appellees are proposing to sell her real estate, is absolutely void, for the reason that the ditch has not been completed as provided for under the original specifications. The facts and matters alleged in the complaint and upon which appellant bases her right to an injunction, do not pertain to the original proceed. ings to establish the ditch. Neither the proceedings under which the work of constructing the ditch was inaugurated, nor the assessments as originally confirmed, nor the final or der directing the proposed work to be carried into effect, are challenged, and all of said proceedings or acts of the commissioners, under the facts, must be presumed to have been in all respects regular and as conforming to the requirements of the law. The complaint does not im |