
    RICHARDS et al. v. ROSE.
    No. 15963
    Opinion Filed Nov. 17, 1925.
    Rehearing Denied July 13, 1926.
    1. Drains — Noncompliance with Statutes in Creation of Drainage District — Injunction.
    The district court has jurisdiction to enjoin the board of county commissioners from creating a drainage improvement district and digging a drainage ditch, where such board is acting in such matter without statutory authority, or in excess of statutory authority.
    2. Judgment Sustained.
    Record examined, and held to support the judgment, and to require that it be affirmed.
    (Syllabus by Shackelford, C.)
    Commissioners’ Opinion, Division No. 4.
    Error from District Court, Pottawatomie County; Hal Johnson, Judge.
    Action by George P. Rose against Allen T. Richards, A. W. Goar, and E. F. Raw-lings, County Commissioners of Pottawatomie County. From the order and judgment of the court, the defendants appeal.
    Affirmed.
    Tom C. Waldrep and Grant Stanley, for plaintiffs in error.
    Arrington & Evans, for defendant in error.
   Opinion by

SHACKELFORD, C.

The plaintiff, George P. ■ Rose, defendant in error here, brought his action in the district court of Pottawatomie county to enjoin the defendants, county commissioners of said county, plaintiff^ in error here, from constructing a drainage ditch. The injunctive relief was granted. ' The county commissioners appeal.

Two principal propositions are presented for reversal. (1) The district court had no jurisdiction. (2) The judgment is not supported/by the evidence.

It seems that the county commissioners of Pottawatomie county were proceeding under chapter 38, Comp. Stats. 1921, to create a drainage district and dig a drainage ditch. The petition was filed as provided in section 6043, Comp. Stats. 1921, stating the necessity therefor, and designating the starting point, route, and terminus thereof, with such particularity as is required by the statute, and signed by five individuals claimed to be affected thereby. On consideration of the petition, the county commissioners appointed viewers as provided in section 6044, Comp. Stats. 1921, who made a survey and return thereof as is required. Upon a hearing of the petition and report of the viewers, the county commissioners fixed the time for hearing and gave notice as required by the statute, showing the place of beginning, general course, terminus, and the purpose of the drainage improvements. Upon the hearing the county commissioners found that the improvement is necessary for sanitary and agricultural purposes; and certified the matter to the judge of the district court of their county as is required by section 6048, Coinp. Stats. 1921. The judge of the district court appointed viewers, as in the last mentioned section provided. These viewers made a report, after inspection, survey, etc., as directed in the said section. It seems that thereafter the county commissioners adopted the report of the viewers appointed by the district judge, and were proceeding to establish the drainage district for the purpose of making the improvement petitioned for, as modified by the report and survey of the viewers appointed by the district judge.

The plaintiff filed his petition in the district court, alleging that his lands would be adversely affected by the improvements contemplated, and sought permanent injunctive relief. The petition and exhibits thereto, and amendment thereof, are rather lengthy. 'It will be sufficient to observe that the petition charges that the viewers appointed by the district judge exceeded the discretion reposed in them by the order of the court and the statute authorizing the appointment of said viewers, in that in their report as to the place of beginning, course to be followed, and outlet of the drainage ditch, there was an unauthorized departure from the original petition filed before the county commissioners which designated the place of beginning, the general course of the drainage ditch, and place of outlet; that the said viewers returned a report and survey showing the drainage ditch to begin at a different point, and follow a course which would have the effect of changing the flow of water from Deer creek, which formed the natural drainage of the district, and which had been followed in the original petition in outlining the course of the drainage ditch; and the iresult of such change would have the effect of carrying the water ■to an entirely different outlet, and would "be to the damage and injury of the plaintiff’s property by reason of overflow and wrongful assessments, and liens be created against his land for digging the ditch, when no benefits are to be derived therefrom, and when the plaintiff’s property would not’ have been so affected by the drainage of water in the ditch as originally proposed; that the county commissioners, in adopting the departure made by the viewers appointed by the distinct judge, are acting entirely outside of their jurisdiction as conferred by the statute, and in excess of any jurisdiction conferred upon them by law; that if the county commissioners are not enjoined they will proceed to cut the ditch along the unauthorized route, and the plaintiff is without adequate remedy otherwise.

Section 6049, Comp. Stats. 1921, fixes the power and discretion reposed in viewers appointed by the district judge. In making their view and survey, the statute provides that:

“They commence at the point described in the petition and follow down the line as nearly as practicable; and when the drain described in the petition is not sufficient in length to drain the land adjacent thereto, they may extend the drain below the outlet named in the petition as far as may be nece’ssary, not exceeding one mile, to obtain sufficient flow or outlet.”

It seems from this quotation that it might well be deduced that if such viewers find it impracticable to commence at about the starting point fixed in the petition, and follow the general course of the drain described in the petition to about the outlet therein fixed, it would become their duty to report to the county commissioners that the drainage ditch described in the petition is impracticable. It seems that no discretion has been given such viewers to go out and make a view and survey, and when they find the project not feasible, or because of some caprice of theirs, or for any reason, change the whole matter by changing the starting point, by following an entirely different line of drainage, materially changing the direction of the flow, and to an entirely different outlet, as is charged in the petition that these viewers have done, and which the board of county commissioners will follow if permitted.

It seems that under the statutes authorizing the county commissioners to create drainage improvement districts and cut drainage ditches, the commissioners are given exclusive jurisdiction of the whole matter, except as is provided in section 6058, Comp. Stats. 1921, -which provides for an appeal upon any one or all three of the following propositions: (1) “Whether just compensation has been allowed for property appropriated; (2) whether proper damages have been allowed for property; and (3) whether the property for which an appeal is prayed has been assessed more than it will be benefited, or more than its proportionate share of the costs of the improvements.”

It is plain from reading the plaintiff’s petition in connection with the section of the statute (sec. 6058), providing for appeal from the action of the board of county commissioners, that plaintiff has no remedy by appeal. Means are provided by statute for raising the money to dig the drainage ditch; but it seems that no money could ever belong to the drainage or impr.ovement district out of which a judgment for damages could be paid. In Coyle v. Board of Com’rs of Kay County, 38 Okla. 370, 132 Pac. 1113, it was held that the board of county commissioners had no authority, subsequent to the filing of the petition and appointment of viewers by the district judge, to include in said proposed drainage district lands not included in the area described in the petition, and if this was done the parties affected might prosecute an action to enjoin the board from annexing and including such lands. The statute has been changed and amended somewhat, but the rule laid down concerning the remedy that might be applied has not been abrogated. It seems to be a well established rule that injunctive relief may be sought in the district court against inferior tribunals such as the board of county commissioners, where such board is acting without any statutory authority, or is acting in excess of statutory authority to the hurt and damage of an individual. The plaintiff has charged with great particularity, stating the facts, that the board of county commissioners were acting without statutory authority and in excess of statutory authority in following the report of the viewers appointed by the district judge.

We think the petition states facts sufficient to constitute a cause of action for injunctive relief; and sufficient to bring the matter within the jurisdiction of the district court to review the action of the board and grant the relief prayed for, if the allegations of the petition are supported by the evidence.

Upon the second proposition, it will be observed that the district court, after hearing the evidence, made the following findings, to wit:

“The viewers, appointed by tbe district court, in laying out and determining the course of said ditch, commenced at tbe starting point as laid in tbe petition so filed, but did not follow down tbe course of said ditch to tbe terminus thereof; and tbe court finds that said board of viewers departed from tbe course of said ditch as laid in tbe petition and changed tbe course thereof from tbe south side of section 35, so that tbe same ran to what is known in tbe record as Ohallis Lake; that this constituted a departure from the line as laid in the petition and that said diteb was extended more than a mile from tbe point of departure; and tbe court further finds that said viewers were without authority of law to depart from tbe course laid in said petition, and that said viewers were without authority of law to* extend said ditch more than a mile from tbe point of departure from the course as laid in tbe petition; that said departure and said extension of said ditch constituted a violation of tbe statute.”

It seems that no good purpose could be served in setting out a summary of the evidence on which such findings were based. Tbe relief sought is equitable in its nature, and tbe equitable rule in consideration of tbe evidence should be applied. Tbe rule in such matters is that upon questions equitable in their nature, on appeal, tbe Supreme Court will examine, consider, and weigh tbe evidence, but will refuse to disturb tbe findings and judgment, unless it be made to appear that such findings and judgment are against tbe clear weight of tbe evidence. It will" be observed that the court found that tbe report of tbe viewers appointed by tbe district judge made a material departure from tbe original petition filed, in that report and survey did not follow tbe course original!y designated as near as practicable, and bad not alone extended the outlet a mile below that designated in tbe original petition, but bad changed the whole course of the drainage, and made an outlet entirely different, and more than a mile below that designated in tbe petition. We find, on examination of tbe evidene adduced, that it does not appear that the findings made are against tbe clear weight of the evidence; but rather that such findings are supported by tbe clear weight of tbe evidence.

There is one other matter called to our attention which, it is contended, necessitates a reversal of tbe judgment. It seems that at some time during tbe course of tbe trial, and before tbe judgment was entered, tbe board of county commissioners permitted tbe original petition to be amended to correspond with the report and survey made by the viewers appointed by the district judge; and it is contended that such amendment of the petition would cure defects, if any, and the petition as amended should have been sustained, and the injunctive relief denied. The boárd of county commissioners seem to have made an order permitting tbe amendment on the last day of tbe trial in tbe district court. Under section 6050, Comp. Stats. 1921, it seems tbe board of county commissioners have tbe power, during tbe course of tbe proceedings creating tbe improvement district and digging tbe drainage ditch, to change tbe course of tbe drain. It seems that changing tbe course of tbe ditch might, and perhaps would, and in this case did, affect property owners not affected directly by tbe ditch if made to follow tbe course originally indicated. Tbe statute provides that tbe change may be made if tbe commissioners have tbe permission of 50 per cent, of the resident landowners or tbe owners of 50 per cent, of tbe total acreage embraced in the district. It is not made to appear that tbe amended petition is supported by 50 per cent, of tbe resident landowners, nor by tbe owners of 50 per cent, of tbe acreage embraced in the district after tbe amendment to tbe petition. For such reason tbe contention made by tbe defendants with reference to the petition as amended cannot be sustained.

The judgment of the district court is affirmed.

By tbe Court: It is so ordered.

Note. — See under (1) 15 C. J. p. 1004, § 418; 19 C. J. pp. 635, § 45; 682, § 152; 9 R. C. L. p. 693. (2) 4 C. J. p. 1129, § 3122.  