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Statement of the Case.

Charles G. Palmer, one of the petitioners, is the owner of the land on which the ditch commences, being the east half of the northwest quarter of section 20; that on this land is a low tract of about ten acres, and a small portion of the north end of the east half of the east half of the southwest quarter of said section owned by L. A. Beard, consisting of about five acres, which could be benefited by the proposed ditch, and that there are no other lands to be reclaimed for agricultural purposes, or that in any wise need surface drainage, and that plaintiff's property already has adequate and sufficient drainage.

The plaintiff further states, that substantially along the line of the proposed ditch is township ditch No. 12, which extends across the low part of the lands of the plaintiff, following a natural watercourse, and from thence across the lands of J. D. Weigle and into the lands of said Palmer, the same being a tile ditch, adequate in capacity to properly drain lands of the plaintiff, and other lands affected thereby; and that this old ditch is ample to drain the lands of Palmer, Beard and Weigle.

The further allegation is made by the plaintiff below, that while old ditch No. 12 is adequate to drain lots and land affected thereby, the trustees are attempting to entertain jurisdiction over the proposed improvement, in causing the construction of a tiled ditch of much greater depth and capacity, not for the purpose of reclaiming lands and providing for surface drainage, but to provide cellar drainage for lots and lands in said village, and that it departs from the natural watercourse at

Statement of the Case.

Mill street and runs along a public alley through high grounds, where there is no natural watercourse, to center of Lynn street, many rods from the natural watercourse and on high grounds where the ditch will be a great depth, for purposes of cellar drainage, et cetera.

It is also alleged that the trustees, under pre•tense of a township ditch, have invaded the village and threatened to assess the lot-owners abutting on the ditch for the purpose of providing a sewer for said village, greatly enhancing the cost for the improvement, so that said lots will be assessed $133.50 for the construction and $14.05 costs of location, et cetera, which assessment will be oppressive and far in excess of benefits; and that the trustees are without jurisdiction in the premises, and other allegations are made in reference to the intentions of the trustees of an illegal character, which will inflict injury upon the said lot-owners, and an injunction is prayed for, restraining the trustees from further proceedings with said ditch and from making the proposed assessments. The foregoing is the substance of the petition.

The trustees filed the following answer:

“The defendants admit that they are the trustees of Madison township, that plaintiff is the owner of the lands, and that the village of Pioneer is a municipal corporation, as averred in the petition.

“They admit that a petition was filed with them as the board of trustees of said township, as in said petition averred, and that thereafter such proceedings were had upon said petition, and relating thereto, that said board heard and determined

Statement of the Case.

said petition and found that the ditch therein prayed for was necessary, and that the same will be conducive to the public health, convenience, and general welfare, and did proceed to locate and establish the same in substantial conformity with the route described in the said petition.

"And that said trustees took to their assistance an engineer to locate, level and measure the course. of said ditch and for such other assistance as they might need according to law.

"The defendants aver that the lands mentioned in the petition, both within and without said village, are in need of drainage, that said ditch is necessary and that its construction will be conducive to the public health, convenience and general welfare, and that it is necessary, in order that said lands lying outside of said village may be drained, that a ditch must pass substantially as located in said proceeding through and across said village to reach a sufficient outlet.

"The defendants admit that said proposed ditch follows the line of township ditch No. 12, in part, and aver that the remainder thereof is located as near thereto as in the opinion of the said trustees would best answer the purposes of said ditch.

“The defendants further aver that prior to the granting of said petition, the owners of lands within the municipal corporation of Pioneer, which are affected by this ditch, applied to the council of said village and requested of said council that it provide for the construction of necessary drainage within said corporation for said lands, and that said council refused so to do and said council requested said defendant trustees to assume juris

Statement of the Case.

diction over the matter of said drainage, and requested said trustees to locate and establish, and cause to be constructed, the said ditch in said petition described, and these defendants aver that said council by resolution duly passed and recorded on its journal, grunted to said defendant trustees, prior to the location of said ditch, the right to use all of the streets and alleys within said village through which said ditch was thereafter located.

“Said defendants aver that prior to the action of said board of trustees complained of in said petition, the board of commissioners of Williams county, Ohio, in a proceeding had in reference to the location and construction of a ditch, whereby it was proposed to drain said lands with said village, refused to grant a petition therefor.

“That at the hearing of said petition certain persons owning lands through which said ditch will pass, made requests in writing to the said trustees for a tile ditch through their lands and the said trustees did deem the same practicable, and equally beneficial, and did grant their request and did order that all of said ditch be tiled, and did specify the size of the tile to be used, and the depth that they shall be placed under the ground according to law, and did apportion all expenses incurred according to benefits derived as provided by the laws of Ohio in that behalf.

“The defendant board denies all of the averments of the petition not herein specifically admitted to be true.

“Wherefore this defendant board prays that the petition of the plaintiff may be dismissed, that

Argument for Plaintiffs in Error.

it go hence without day and recover costs herein expended."

The plaintiff demurred to the answer on the ground "that the facts stated and averments contained in the said answer do not constitute a defense to the said petition of the plaintiff, and that said answer does not show that the said defendants have jurisdiction in law as a board of township trustees to construct a ditch as set forth in the pleadings."

The circuit court, on appeal, sustained the demurrer, and found for the plaintiff as prayed for in his petition and decreed accordingly.

Error is prosecuted in this court to reverse the judgment of the circuit court.

Mr. Edward Gaudern, prosecuting attorney, and Mr. Willis A. Estrich, for plaintiffs in error.

When the only outlet for water lying within one governmental jurisdiction is to be found within another governmental jurisdiction, the sensible thing to do is to conduct such water to such outlet. The interests of agriculture require that farm lands be properly drained whether they lie adjacent to a municipal corporation or elsewhere. Kent v. Perkins, 36 Ohio St., 639; Commissioners v. Harbine, 74: Ohio St., 324; Reeves v. Treasurer, 8 Ohio St., 333.

If the municipality and the surrounding country are in the same general plane and the ditch may be laid around the municipality with but little disadvantage, the trustees may so locate it and assess the lands within the village for its construction.

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