#### Pederson and others, Appellants, vs. Chipman and others, Town Supervisors, Respondents (In re Drainage System, Etc.).

*April 3*

April *30, 1918.*

*Town drams: Notice of hearing: Personal service, upon whom required: Award of damages: Compelling performance of required acts: Subsequent fiowage and award.*

1. The notice provided for in sec. 1360, Stats. 1913, need be served personally only upon the owners of the lands through which the proposed drain will pass, the posting of such notice as prescribed in said section being legal notice to others of the proceeding to lay out the drain.

2. One whose land will be injured by a proposed town drain must proceed diligently to have his damages determined and included in the expense of construction which is to be assessed against the lands benefited.

3. Under sec. 13677;., Stats., providing that the circuit court shall require performance when any officer or body fails or refuses to perform an act required “within the time specified in sections 1359 to 1367c,” the “time specified” must lie somewhere between the filing of the petition and the assessments for construction.

4. Where a town drain was laid out in 1913 and constructed in 1914 after an award of damages duly made, the owners of lands be*349yond and below the end of the ditch, upon which water from the ditch flowed in 1916, cannot by a proceeding commenced in 1917 under °sec. 13677i, Stats., compel the supervisors to award damages for such flowage, although to one of such owners no damages had ever been awarded and the others claim that the damages which were awarded to them were inadequate.

5. If aggrieved by the award of damages made prior to the construction of the drain, such landowners should have appealed to the county court as provided in sec. 1367, Stats.

Appeal from an order of tbe circuit court for Columbia county: Chestee A. Eowxeb, Circuit Judge.

*Affirmed.*

Tbe appeal is by *John O. Pederson,- Jacob Postad,*and, *Knute Hoverson,*resident freeholders of tbe town of Leeds, Columbia county.

Tbis is a proceeding under tbe statutes to compel tbe supervisors of tbe town of Leeds, on notice, to meet and award damages to tbe aforementioned freeholders for alleged damage caused to their lands by a town drain installed in 1914. Tbis drain of tbe town of Leeds was ordered by tbe town board in 1913 and constructed in 1914. No notice was served upon tbe complaining freeholders, as their lands lay beyond and lower than tbe end of tbe ditch. In 1916 tbe water from tbe ditch flowed in a natural course onto their lands, first onto tbe lands of *Pederson,*then onto tbe lands of *Postad,*and then onto tbe lands of *Hoverson.*

Tbe three property owners made application to the supervisors requesting them to meet and award them damages for such flowage. It was then discovered that tbe supervisors bad, at tbe time of tbe installation of tbe ditch, awarded damages to *Pederson*in tbe sum of $100, and to tbe owner of tbe lands now owned by *Postad*tbe sum of $100. No damages bad been awarded to *Hoverson.*Tbe sums bad not been paid and tbe time for an appeal bad expired. Appellants claim that these sums are inadequate for tbe damage resulting from tbe alleged overflow from tbe ditch. Tbe supervisors refused to meet, so. appellants applied to tbe cir*350cuit court for an order under sec. 136Y/i, Stats., compelling them to meet and determine the damages. The circuit court dismissed their petition, from which decision appeal is taken.

Eor the appellants the cause was submitted on the brief of *Nelson & JBushnell*of Madison.

*H. B. Andrews*of Portage, for the respondents.

Siebecicee, J.

The petitioners contend that they were entitled to personal service of the notice prescribed by sec. 1360, Stats. 1913. The supervisors are required by this section to “make out a notice and fix therein a time and place at which they will meet to examine and decide” upon application for laying out the proposed drain, and “such notice shall specify . . . the several tracts of land through which the same will pass; and the petitioners shall cause the notice to be served upon each of the resident owners of said several tracts of land, personally or by copy left at his usual place of abode, . . . and copies thereof shall be posted up in three public places in the town in which the drainage is situated at least ten days before such time of hearing.”

It appears that the drain does not pass through the lands of petitioners and that their lands are not within the limits of the district forming the drain. Manifestly the terms of the statute require personal service of the specified notice only on owners of land “through which” the drain passes. The notice served and posted as shown in the proceeding complied with the statute and conferred jurisdiction on the supervisors to lay out the drain as they did. The petitioners make this application under the provisions of sec. 136YA, Stats., providing that if any officer or body fails or refuses to perform an act required “within the time specified in sections 1359 to 136Yc/'’ Stats., the circuit court shall, unless good cause to the contrary be shown, require performance of the act by the delinquent officer or body. , The trial court properly held that in proceedings of this nature “any one having *351objection on account of damages to bis own lands must bave those damages determined before tbe expense of construction can be assessed against tbe tracts of lands benefited.” *Fraser v. Mulany,*129 Wis. 377, 109 N. W. 139. Since petitioners bad legal notice of tbe proceeding to lay out tbe drain, it was incumbent upon them to proceed diligently to bave tbeir damages, if any, determined and included in tbe expense of construction wbicb was to be assessed against tbe land benefited. Tbe drain was laid out in December, 1913, and petitioners commenced tbeir proceeding in January, 1917. Tbe court correctly beld that sec. 13677i applies “when tbe failure or refusal is to perform tbe act required witbin tbe time specified in secs. 1359 to 1367c/’’ and bence it “must lie somewhere between tbe filing of tbe petition and tbe assessments for construction.” Obviously tbe petitioners present no grounds for relief witbin tbe provisions of this statute. Under tbe facts presented by tbe petitioners, if they were aggrieved by tbe .action of tbe supervisors in tbe assessment of damages they should bave availed themselves of tbe remedy provided by see. 1367 and taken an appeal to tbe county court. It must be beld that tbe petition states no ground for tbe relief demanded and that tbe trial court properly dismissed tbe proceeding.

*By the Court.*— Tbe order appealed from is affirmed.