#### Greek et al., Trustees, *v.*Joy.

*Township trustees have jurisdiction*— To *locate and construct ditches*— Into *and through*villages, *when.*

Township trustees have jurisdiction to locate and construct a ditch within the township, where it commences on farm lands without the limits of an incorporated village, and extends into or through such village to an outlet.

(No. 11420

Decided January 18, 1910.)

Error to the Circuit Court of Williams county.

The defendant in error, by petition in the court of common pleas, complained of the proceedings of the plaintiffs in error, because they were about to construct a certain township ditch partly located in the village of Pioneer, in Williams county, and were about to assess part of the cost and expense of construction on his several lots in said village of which village he is a resident and taxpayer. In his petition for an injunction against said trustees, the lot-owner copies the petition for the ditch and the names of the several petitioners, eight in number,. in which is a full description of the termini and route, and it is then alleged that *316Charles 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 *317Mill 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 illeg'al 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 '¡Detition.

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 *318said 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*319diction 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, granted 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 *320it 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. *321*Lewis et al.*v. *Laylin et al.,*46 Ohio St., 663; *Cincinnati*v. *Penny,*21 Ohio St., 499.

The power to assess is dependent upon the jurisdiction to establish the ditch. The powers to establish ditches is very broad, but can not exceed the limitations of the statute conferring them. *Sessions*v. *Crunkilton, 20*Ohio St., 349; *Doney*v. *Trustees,*1 C. C., 566; 1 O. C. D., 316; *Wells*v. *McLaughlin et al.,*17 Ohio, 99; *State, ex rel,*v. *Ward et al.,*17 Ohio St., 543.

Township trustees will be absolutely without power to provide drainage for lands lying above municipal corporations, if the limitation placed upon them by the circuit court is sustained. *Hopple*v. *Trustees,*13 Ohio St., 311.

A construction of Section 4511, Revised Statutes, authorizing township trustees to establish ditches, ought not to be favored which will defeat, under some conditions, the benefits intended to be conferred upon all of the territory. Lewis’ Sutherland Statutory Construction, 511.

The law should give the trustees of the township authority to cause a ditch to be located and constructed, even if the lower tenements were within a municipality. The power of drainage by the township trustees is not exhausted by one ditch. *Miller*v. *Weber et al,*1 C. C., 130, 1 O. C. D., 77; *Miller*v. *Commissioners,*3 C. C., 617.

*Mr. R. L. Starr*and *Mr. C. H. Masters,*for defendant in error.

The defendant in error claims that township trustees have jurisdiction In ditch matters only *322outside of municipalities, and that where a municipality is involved, the ditch petitioners must resort to the county commissioners under Sections 4447, 4483, 4484, and 4485, or the township trustees can resort to. the county commissioners under Section 4493; and that the attempt to give to the trustees implied powers under Section 4511 to invade villages and municipalities is unnecessary and vicious. *Pleasant Hill*v. *Commissioners,*71 Ohio St., 133.

Section 4512 defines the meaning of “ditch” and “according to benefits.” Section 4524 provides for boxing or tiling. *Doney*v. *Trustees,*1 C. C., 566. Section 4483 confers certain power upon county commissioners under certain proceedings to construct ditches in municipalities. *Cooper*v. *Commissioners,*16 O. D., 638; *Pleasant Hill*v. *Commissioners,*71 Ohio St., 133. Section 1536-100, Revised Statutes, and following sections confer power upon municipalities to construct ditches, drains and sewers. Section 1536-213 provides for limitation of assessments. *City of Toledo*v. *Railway Co., 4 C. C.,*113.

We claim the legislature did not intend that the township trustees and councils of incorporated villages or cities should have concurrent jurisdiction in the construction of ditches in municipalities. To do so would be repugnant and inimical to the powers of municipalities.

To drain land is to rid it of its superfluous moisture. *People*v. *Parks,*58 Cal., 639.

The words “ditch” and “drain” have no technical or exact meaning. They both mean a hollow space in the ground, natural or artificial, where *323water is collected or passes off. *Goldthwaite*v. *East Bridgewater,*5 Gray (Mass.), 64.

As generally understood in law the term “sewers” has reference to' the underground canal or passage by means of which cities are drained and the refuse liquids are carried to its sea, river, or other place of reception. 6 Am. & Eng. Ency. Law (1 eel.), 2; *Hanscom*v. *Omaha,*11 Neb. 37, 7 N. W. Rep., 739; *Gale*v. *Dover,*68 N. H., 403.

It may be true that when the term drainage is used with reference to lands, that ordinarily drainage of waters is intended, but it is clear that when that term is used with reference to a city or town, it includes sewerage. *Valparaiso*v. *Parker,*148 Ind., 381; *McCray*v. *Fairmont,*46 W. Va., 443; *Fuchs*v. *St. Louis,*167 Mo., 620, 67 S. W. Rep., 614; *Clark*v. *Peckham, 9*R. I., 467; *Clay*v. *Grand Rapids,*60 Mich., 452.

Section 920 of the Iowa code of 1873 gave to board of supervisors general supervision over the highways in the county with power to change them. *Gallaher*v. *Head,*72 Ia., 173.

Section 969 of ' Iowa code provided that the township trustees shall divide their respective township into such number of highway districts as they may deem necessary for the public good, yet in *Marks*v. *County of Woodbury,*47 Ia., 452, it was held that such power extends only to so much of the township as is not embraced in a city.

Section 1536-131, Revised Statutes, provides that council shall have control of streets, etc.,, and the cases are numerous deciding that county roads afterwards comprised within the corporate limits of a municipality are subject to supervision of *324council. *Steubenville*v. King, 23 Ohio St., 610; *Youngstown*v. *Moore,*30 Ohio St., 133.

The village of Pioneer, under the code, has full control over all parts of its territory for drainage purposes, and no other power formed for drainage purposes can embrace part of the territory within said village so as to invade the authority of the village in said matters of drainage. *Bishop*v. *People,*200 Ill., 33; *People*v. *Supervisors,*111 Ill., 527; *People*v. *Railway Co.,*118 Ill., 520; *City of Quincy*v. *Bull,*106 Ill., 349; *Dock & Canal Co.*v. *Garrity,*115 Ill., 163.

Price, J,

The township trustees had entertained the petition for the ditch and had proceeded, so far as to confirm the report of the engineer when they were enjoined at the suit of the defendant in error. Many of the allegations of the petition were met by a general denial contained in the answer to which the demurrer was sustained. This general denial follows the affirmative matter in the answer, and a close construction of these pleadings would suggest that the demurrer challenging the sufficiency of the answer should have been overruled, provided the trustees had jurisdiction under the statute to entertain the petition for the’ ditch and grant its prayer. If jurisdiction were conceded, the issues made by the petition for injunction and the denials in the answer should have been tried and determined in favor of the plaintiff before he was entitled to an injunction to stop further proceedings. Keeping in mind the averments of the petition, we find the answer admits the filing of the ditch petition with the trustees, and that such *325proceedings were had thereon, and relating thereto, that said board had heard and determined said petition, and had found that the ditch prayed for was necessary, and that the same would be conducive to the public health, convenience and general welfare, and therefore proceeded to locate the same substantially on the route described.

It further appears in the answer that the lands mentioned, both within and without said village, are in need of drainage, and that it is necessary, in order that the 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; that the proposed ditch follows the line of ditch No. 12 in part, and that the remainder of it is located as near thereto' as would best answer the purpose of said ditch.

The trustees further say that prior to the granting of said petition, the owners of lands within the village of Pioneer, which are affected by this ditch, applied to the council of said village and requested that it provide for the necessary drainage within said corporation for said lands, and that the council refused to do so, and that the council requested said trustees to assume jurisdiction over the matter of drainage, and requested them to locate and cause to be constructed the ditch described, and that said council by resolution duly passed and recorded on its journal, granted to said trústees, prior to the location of said, ditch, the right to use all of the streets and alleys within the village through which said ditch was thereafter located. This is not all of the defense, *326for the answer says that prior to the action of said trustees complained of, the board of commissioners of that county, in a proceeding had in reference to the location and construction of a ditch whereby it was proposed to drain the lands within the village, refused to grant a petition therefor. They say as to the matter of tiling, that at the ditch hearing, certain landowners made request in writing for a tiled ditch through their lands, and the requests were granted and size of tile fixed, and the depth in the ground was also fixed, and that the expenses of the improvement were apportioned according to.law.

The allegation in the petition • that the ditch proceeding was being used to provide a sewer for the village and furnish cellar draining is denied by the answer. The anticipation of this alleged sewer, furnishes many authorities for the brief, but the denial takes it out of this discussion of the demurrer.

Hence, the proceeding was that of an ordinary township ditch, commencing on lands outside the village, and following in part an old ditch (No. 12) through the village to a creek as an outlet.

By sustaining a demurrer to the answer, the circuit court has said that it — embracing general denials and all — constitutes no defense to the petition for injunction. The ground selected by counsel for this view, though not stated in the judgment entry, is the absence of jurisdiction in the township trustees to entertain and grant the petition. If this is true, the petitioners for the ditch are in an unfortunate situation. The village council would not act in providing the drainage *327within the corporation, and the commissioner's-refused the prayer of a petition for the route now in question for some reason not of record; and now it is said the township trustees have no jurisdiction to *invade*the village by their ditch proceedings.

The question is to be determined by our statutes pertaining to the subject, and cases cited from other states construing their laws are of little aid to us.

We think our statutes are plain and free from ambiguity, and seem to recognize that in some instances township trustees and county commissioners may have concurrent jurisdiction to locate and construct a ditch, as may be made to appear later in our investigation. The provisions for county ditches are found in Chapter 1, Title VI, Revised Statutes, and for township ditches in Chapter 2 of the same title.

Section 4511, Revised Statutes, provides: “The trustees of any township may, whenever in their opinion the same will be conducive to the public health, convenience or welfare, cause to be established, located and constructed as hereinafter provided, any ditch *within such township,*and for that purpose may cross a railroad, turnpike road, or do any other thing necessary or proper to promote said purpose.” The next section defines the meaning of the word “ditch,” “to. include a drain or watercourse,” and says that a petition for such improvement “shall be held to include any side, lateral, spur or branch ditch, drain or watercourse necessary to be constructed to secure *328the object of the improvement whether the same is mentioned therein or not.”

The subsequent sections provide the mode of procedure, for claims for compensation and damages, for appeal, *et cet.*Section 4552 makes provision for altering, deepening and widening, boxing or tiling of the ditch. The entire Chapter 2 is devoted to township ditches, and its provisions are clear and contain no obstacle to full jurisdiction where the proposed ditch is within the township. In this instance it commences on low lands — farm lands outside of the corporate limits. That territory claimed better drainage, and the route through the village to the creek was considered practicable and the best for the purposes in view. Of that fact the trustees are made the judges, subject to right of appeal.

Does the fact that a village is on the route oust jurisdiction which otherwise would be perfect? The village is in and forms a part of the township, and its citizens take part in electing the trustees and other officers of the township, and are under their jurisdiction in many governmental particulars.

But it is said that the case of *Village of Pleasant Hill et al.*v. *Commissioners, 71*Ohio St., 133, sustains the holding of the circuit court on the demurrer in this case. We think it does not. The ditch under consideration in that case was wholly within the village, and its drainage being amply-provided for by the municipal code, action by the commissioners was not necessary to full relief. But proceedings for a township ditch could not be entertained by a village council to drain lands *329outside of the corporation, ¡such as farm lands in this case.

Again, it is urged for defendant in error, that while no lack of jurisdiction appears in the statutes providing for and regulating the location and construction of township ditches, there are certain sections in the statutes vesting authority in county commissioners to locate and construct ditches, which should be considered as defeating the jurisdiction of trustees in this case, and Sections 4447, 4483, 4484 and 4485 are cited with Section 4493.

These sections are part of Chapter 1, which is applicable to county ditches, or those located by county commissioners. This resort to Chapter 1, to limit the authority of trustees clearly conferred by Chapter 2, needs more than mere statement for its justification. But what are these sections? The first mentioned confers jurisdiction on commissioners of counties to locate and construct county ditches. Section 4483 authorizes a municipal council by resolution to authorize the mayor to present a petition signed by him officially, and a bond to the county commissioners, to locate and construct a ditch described in the resolution, or such council may authorize the mayor to sign officially a petition and bond for a ditch, to be presented by parties interested, whose lands are without the limits of the corporation, whenever the improvement will be conducive to the public health, convenience or welfare, of the whole or any portion of the inhabitants of the corporation; and in such case the commissioners shall count the municipal corporation as an individual petitioner, and may direct the engineer to *330locate the improvement in accordance with the petition, whether wholly within, or wholly without, or partly within and partly without, the limits of the corporation. In such case the section instructs the engineer as to his duties and authority while acting under either kind of petition. Section 4484 continues the same subject, permitting the engineer, commissioners, or a jury, if one be called, to treat the benefited territory within the corporation as a single parcel of land, *et cet.*Section 4485 provides for notice to the corporation, where the mayor has not signed the petition.

And Section 4493 provides that on the written application of twelve or more resident landowners of the township, the trustees, if in their opinion the interest of. the township demands it, may cause the petition and bond hereinbefore provided for to be filed on behalf of the township, and that in such case, the same proceedings shall be had as mentioned in the preceding sections. Considering all of them, we find the different modes of presenting to the county commissioners a petition for a ditch. where a municipality or township is interested. In one case as under Section 4483, the council by resolution may authorize the mayor to present a petition signed by him officially, for a ditch described in the resolution, or the council *may*authorize the mayor to sign a petition officially, to be presented to the commissioners by parties interested whose lands are without the corporate limits. These are the steps by which a municipal corporation may present a petition, and 4493 describes how township trustees may apply to the commissioners for a ditch where at least *331twelve landowners resident of the township ask such trustees in writing to make the application. In this event the township trustees become the sufficient petitioner, as the municipal corporation becomes a petitioner under Section 4483.

But we should not conclude that- these are the only steps by which county commissioners obtain jurisdiction to locate and construct a ditch which may affect the lands within or without the corporate limits. These sections provide who, in addition to the persons- mentioned in Section 4450, may apply for a ditch and how the same may be signed and presented. If the municipal authorities do not desire to petition; if the township trustees are not requested in writing by at least twelve landowners of the township to petition the commissioners, of course these two classes of authorities can not become petitioners, but the persons mentioned in Section 4450 may still apply for a ditch which may affect the corporation or township.

The law giving jurisdiction to township trustees to locate and construct a township ditch contains no provision whereby a municipal corporation may present a petition, but under Section 4514, authorizing it to be signed by “one or more persons owning lands adjacent to the line of the proposed ditch,” lot-owners in the village, if the lots are adjacent to the line, may join with landowners without the village in making the application to the trustees. It is a weak argument to say that, as in special instances and in special ways, a municipality or trustees of townships may petition the commissioners, if no one else does, trustees have *332no general jurisdiction because the same provisions are not found in the township ditch law whereby a village may petition the trustees. The lack of such provisions does not defeat jurisdiction, if the rules prescribed by the statute are observed and followed. This township ditch law seems complete of itself, and we are not to discount its authority on the ground that the county commissioners may hear other parties not named in it.

We are of opinion that the demurrer should have been overruled, and the circuit court erred in not so deciding.

*Judgment reversed.*

Summers, C. J., Spear, Davis and Shauck, JJ., concur.