
    Blaine et al. v. Lucas et al.
    (Decided May 19, 1928.)
    
      Mr. Charles II. May, for plaintiffs in error.
    
      Mr. C. A. Weldon and Messrs'. Abernethy & Simhins, for defendants in error.
   Mauck, J.

Ernest D. Blaine and others, resident landowners in Darby township, Pickaway county, petitioned the county commissioners of that county for the establishment of a county ditch. The provisions of Section 6442 et seq., General Code, were complied with by the commissioners and the county surveyor, with the result that the prayer of the petition was granted, and assessments for the proposed improvement were made and confirmed by the commissioners. Thereafter those opposed to the improvement appealed to the court of common pleasi That court found against the petitioners and dismissed the petition. Error is now prosecuted to this court to secure a reversal of that judgment of the common pleas.

. The sixth paragraph of Section 6473, General Code, provides that, if the appeal be from a final order of the commissioners favoring the improvement and confirming the assessment, and the common pleas finds that the improvement is necessary and will conduce to the public welfare, and that the cost thereof will be less than the benefits, the court shall further hear the case in regard to the assessments and confirm or correct the same according to law. The seventh paragraph of that section provides that, if the appeal be from an order favoring the improvement and confirming the assessments, and the common pleas find that the improvement is not necessary, or does not conduce to the public welfare, or that the resulting benefits are less than the cost, the court shall dismiss the petition.

In this case the record sho^vs that the common pleas did not find that the improvement was unnecessary, or that it was not conducive to the public welfare, or that the benefits would not equal the costs. The judgment was simply that it is “adjudged and decreed that the said petition and proceedings thereunder be and the same .are hereby dismissed.”

From the bill of exceptions it is learned that the trial judge did not view the premises sought to be improved, and his reason therefor was that the proceeding was an illegal one, and a view of the premises would not be helpful. The record shows that the lands involved need drainage. Indeed, that is not denied by those who are resisting this particular improvement. Everybody seems to realize that something ought to be done. The differences are only in what should be done, and how. From the expression of the trial judge quoted, and from the journal entry, it is evident that the judgment now under review was predicated on the finding that the commissioners were without authority to entertain the petition for the ditch because a legally established ditch was already in existence that affected at least a part of the territory to be drained by the ditch sought to be established by the petition in this case. The facts are these:

The proposed improvement begins on the Dick land and runs in a westerly direction to Deer creek. A branch is to run into this drain from the Zahn lands, on the north, and another is to tap it near the same junction, running from the Blaine lands on the south. Thesebranches from the north and south are rather closely paralleled by a joint township ditch established by the trustees of Darby and Monroe townships in 1875. This old ditch had by its establishment become a water-course, and in the judgment of the trial court constituted an obstacle to a new ditch until it was vacated by legal proceedings. In our view, this position is not supported by authority nor by the sounder reasoning. If this position is sustained, it will effectually and forever prevent any improvement of the property in question, for the very sufficient reason that the old ditch cannot be vacated practically until an alternative system is devised to take its place.

A ditch can be vacated only by proceeding under Section 6506, G-eneral Code. An order of vacation can only be made when upon petition the commissioners' find that the vacation will be conducive to the public welfare. They must, further find the value of the old ditch to interested owners, and assess just compensation for their benefit from the property to be benefited by the vacation. The record in this case shows that the old ditch has some value. The record as a whole shows that it is ineffectual; but it has some value, and does not show a corresponding injury to any other land. If it were vacated, what lands could be assessed to compensate those who would suffer thereby? No other lands would be particularly benefited by such vacation. Indeed, they would all be injured thereby to a greater or less extent, because a little drainage is better than none. It appears, therefore, that a construction of the statute that requires a vacation of the old ditch as a condition precedent to the establishment of a new one is equivalent to a perpetual injunction against a new ditch.

The only available authority seems to sustain the conclusion at which we have arrived. It was so decided by one of the most eminent circuit courts of the state. Two of the judges participating in the decision were afterwards on the Supreme Bench, and the third judge was of equal merit. In Miller v. Weber, 1 C. C., 130, 1 C. D., 77, that court held:

“The location and construction of one ditch by the township trustees to drain certain territory does not exhaust the power of draining over that territory, nor confine it to the deepening, widening, etc., of such previously constructed ditch; nor are trustees in the location of ditches restricted to the course of the natural flow of the surface water. The only limitation as to the number, course, and location of township ditches, is that they shall be conducive to the public health, convenience, or welfare. ”

The record in this case shows the desirability of improved drainage of the lands in question. The course of the drainage, its character and extent, are engineering and administrative problems. We express no opinion thereon.

The court of common pleas, in reaching the conclusion that the commissioners were without jurisdiction to grant the prayer of the petition, and in dismissing the petition, was in error. The judgment of that court is reversed, and the cause is remanded for further proceedings in accordance with the statutes.

Judgment reversed and cause remanded.

Middleton, P. J., and Thomas, J., concur.  