#### Ward, Respondent, vs. Babcock and others, Commissioners, Appellants.

*February 22*

March *14, 1916.*

*Drainage districts: Report of commissioners: Order requiring modification: Appeal: Establishment of district, how far conclusive: Assessment of benefits: Remonstrances: Hearing: Evidence: Instructions to fury.*

1. Under sec. 1379 — 20, Stats., an appeal may be taken from an order of the circuit court requiring drainage commissioners to modify their report, before such modification is actually made or the report as modified is confirmed.

2. The establishment of a drainage district by the court pursuant to sec. 1379 — 17, Stats. 1911 (sec. 1379 — 14, Stats. 1915), conclusively establishes that all the lands included will be benefited and that the total benefits will exceed the total damages and cost of construction.

3. Upon the trial, pursuant to sec. 1379 — 20, Stats., of an issue ks to benefits, arising on the remonstrance of a landowner, it was error to exclude testimony offered by the commissioners tending to explain the difference between the assessments for construction and. the assessments of benefits, and to refuse to give a requested instruction to the effect that the assessment of benefits upon which the jury was required to pass constituted the basis upon which the assessment for construction should be apportioned and in no manner indicated the amount which the remonstrant might be required to pay toward the cost of construction.

4. In reviewing an assessment of benefits the jury should have before it, as nearly as possible, all the data upon which the commissioners acted.

5. Benefits in such cases, like values, may be proven not only by opinion but by relevant instances; and if other tracts of land bear substantially the same relation to the improvement as does the land of the remonstrant, the benefits assessed to such other tracts and acquiesced in by the owners thereof would have some-probative force.

6. An instruction, in such a case, that the jury were not to consider any general benefits caused by the proposed ditches and drains, but only such actual special benefits, if any, as were caused to the lands of the remonstrant, and that general benefits are such as the owner of the land enjoys in common with the public at large, *540and special benefits are such direct and actual benefits as are received exclusively by the land in question, was inappropriate and erroneous as tending to suggest to the jury that the lands o£ the remonstrant must have received special benefits over and above other lands in the drainage district.

'7. If underdrainage of the remonstrant’s land is necessary to the obtaining of beneficial results from the drainage scheme, evidence as to the cost of such underdrainage is relevant and material upon the question of benefits; and it was error in such a case to instruct the jury that in assessing benefits they should not consider any increase in market value which would be caused by drains so put in by the remonstrant.

Appeal from an order of the circuit court for Walworth •county: E. B. BeldeN, Circuit Judge.

*Reversed.*

The appeal is from an order of the circuit court based on the verdict of a jury and modifying a report of the drainage •commissioners with reference to benefits and damages accruing to the lands in said drainage district of the respondent, *Daniel Ward,*and ordering that the commissioners take further proceedings in that behalf, as provided by statute.

For the appellants there were briefs by *Whitehead & Mathe-son,*attorneys, and *Thompson, Myers & Kearney,*of counsel, and oral argument by *A. E. Matheson*and *Peter J. Myers.*

For the respondent there was a brief by *Tullar & Lochney,*attorneys, and *Henry Lochney*and *J ay W. Page,*of counsel, and oral argument by *Henry Lochney.*

Pee CueiaM.

The report of the commissioners under sec. 1319 — 18, Stats.,* was attacked by respondent only in respect to the assessment of his damages, which was considered too low, and in respect to the assessment of his benefits, which he considered too high. The circuit court was authorized to “impanel a jury and take its verdict upon the trial of such issues.” Sub. 2, sec. 1379 — 31m: “The court shall have an equitable supervision over all matters pertaining to drainage district proceedings with like force and effect as if the said proceeding were a case in equity.” All other issues, if any, arising *541•on any remonstrance are to be tried by tbe court'. Sec. 1379— 20. Tbe same section provides that where there is no remonstrance, or where the finding is in favor of the validity of the proceedings, or after the report shall have been modified to conform to the findings, the court shall confirm the report, .and the order of confirmation shall be final and conclusive unless within thirty days an appeal be taken to the supreme court. The language of the statute in this particular is as follows: “The proposed assessments [shall be] approved and •confirmed, unless within thirty days an appeal be taken to the supreme court.”

Here the first question for the consideration of this court arises. The respondent contends that this appeal cannot be taken until after approval and confirmation of the modified report. The statute is somewhat obscure, but the more accurate interpretation appears to be that approval and confirmation of the modified report do not precede an appeal to the supreme court, but that such approval and confirmation will follow the modification of the report by the commissioners unless within thirty days an appeal be taken to the supreme court, and in that case there shall be no approval or confirmation until after the appeal is disposed of. This seems the more reasonable interpretation, because no good purpose could be subserved by requiring the report, before it is finally decided on appeal, to be rewritten and then compelling the losing party to obtain an order of confirmation of said report so rewritten before the appeal to the supreme court from the final command to modify the same given by the circuit court in the special proceeding consisting of the trial of the remonstrances. This construction is confirmed by sec. 1379 — 20m, specifying when the confirmation should be made by the circuit court and enumerating certain past things, among them a remonstrance heard and determined and no appeal taken therefrom. This appeal, taken after the trial last mentioned and the entry of the final order on such trial and before the commis*542sioners rewrote tbeir report to conform to the modification, there ordered and before said rewritten report was approved or confirmed, must be held to have been taken in time.

The appellants complain of a mistrial of the issues framed-pursuant to sec. 1379 — 20. They point out that the assessment district contains 4,040.82 acres, the number of parcels-of land assessed for benefits is 17 6, of which the respondent,. Ward, owned eight. The total estimated cost of construction is $61,476.99; the total benefits assessed to the several parcels of land constituting the drainage district are $142,802.36. The benefits assessed to the eight tracts of *Mr. Ward*by the commissioners were $7,438.76. The cost of construction is only about forty-two per cent, of the benefits assessed. This assessment of benefits on the lands of respondent was reduced by the verdict from $7,438.76 to-$1,337, and forty-two per cent, of this latter sum would make-respondent’s share of the cost of construction, assuming the-cost equals the estimate, $561.54, as against $3,124.25 which would follow the finding of the commissioners. This was quite an extraordinary cut in the respondent’s assessment of benefits and must require an increase in the amounts which the other property owners will respectively be required to pay to defray the cost of the work.

Keeping in mind that a public purpose is essential to support all taxation and that in addition to this a benefit at least equal to the amount of his tax must accrue to the owner of property before he can be charged with a special assessment in these proceedings, we can better understand the nature of the statute which requires that the whole cost of construction- and the total benefits be found, and which also provides that in case the cost exceeds these benefits no drainage district shall be established. The establishment of a drainage district properly made by the court conclusively establishes that all the lands included will be benefited and that the aggregate-of such benefits will exceed the damages and cost of construe*543tion. It is not contemplated that assessments should be 'collected up to the amount of the benefits derived, except where absolutely necessary to complete the public improvement. The order creating the district is final and conclusive on the propositions that the proposed drainage district is a public improvement, that the public welfare and health will be advanced by its creation, and that it is established under the law as a drainage district. In the establishment of this district and in the ascertainment of the cost of construction and the amount of benefits the circuit court exercised an equitable jurisdiction over the proceeding. The statute provides that the damages to the land caused by the construction of the improvement and the benefits flowing from such construction are questions which may be tried before a jury. But after the district is established, the ascertainment of damages and benefits must be on the hypothesis that the total benefits exceed the total damages and cost of construction.

The learned circuit judge excluded testimony offered by the commissioners tending to explain the difference between the assessments for construction and the assessments of benefits, and refused an instruction requested to the effect that the assessment of benefits upon which the jury was required to pass constituted the basis upon which the assessment for cost of ■construction should be apportioned and in no manner indicated the amount which the respondent might be required to pay toward such cost of construction. Instead of that he instructed the jury as follows: “These questions must be determined entirely apart from and uninfluenced by the matter of cost of construction of the proposed drains and ditches, which is not for consideration in this case whatever.”

We think these rulings were erroneous and probably accounted for the remarkable difference in the estimate of benefits by the commissioners and by the jurors. In reviewing the judgment of the commissioners as to the amount of benefits, the jury should have before it as near as possible all the *544data upon wbicb the commissioners acted. An expensive, well-constructed system of drainage, backed by ample resources for its construction and upkeep, might confer greater benefits on adjacent lands than one not so complete. Resides, benefits in such cases, like values, may be proven not only by opinion but by relevant instances. If other tracts of land bore the same or substantially the same relation to this public improvement as did the lands of the respondent, the benefits assessed to the former lands and acquiesced in by the owners thereof would have some probative force on the inquiry. In condemnation proceedings, when we seek to ascertain the market value of land taken, proof of the price at which other similar tracts were sold within a reasonable time prior to the taking is considered competent.

We are also of opinion that the court erred in its instructions relative to general benefits. There was no such question in controversy. The inquiry was, How much were these lands benefited by the construction of the drains in question ? To say to the jury that they were not to consider any general benefits caused by the proposed ditches and drains, but only to take into consideration and assess upon the lands of the remonstrant such actual special benefits, if any, as they might find from the evidence were caused to the lands of remonstrant, had a tendency to suggest to the jury that the lands in qxiostion must have received special benefits over and above other lands in the drainage district. To say to the jury that general benefits are such benefits as the owner of the land in question enjoys in common with the public at large and special benefits are such direct and actual benefits as are received exclusively by the land in question and not by the public or lands generally, is inappropriate to the question before the jury. The public or lands generally at an earlier stage of the proceeding were excluded from consideration, and to interpose this question and lay it before the jury at the trial had a tendency to mislead.

*545We are of tbe opinion tbat tbe court erred in rejecting tbe evidence offered by tbe commissioners as to tbe cost of under-draining *Ward's*lands to connect with tbe completed drains of tbe district and in giving tbe instructions on tbis subject. Tbe court instructed tbe jury:

> “Whether *Mr. Ward*shall connect with tbe proposed drainage system by bis own underdrainage 'is entirely for him to say. . . . There has been some evidence of a plan of internal drainage which might be used by remonstrant in draining or improving bis lands. . . . But in assessing benefits you should not take into consideration any increase in market value, if any, which would be caused by any drains so put in by remonstrant, for tbat would be tbe result of tbe expenditure of his own money. . . .”

Tbe question of tbe cost to remonstrant in adopting a system of internal drainage by underdraining bis land in connection with tbe general drains of tbe district is material in ascertaining what tbe amount of tbe benefits, if any, would be to remonstrant. If underdrainage is necessary to obtain beneficial results from tbe drainage scheme, then tbe cost thereof is a relevant and material item in ascertaining whether tbe landowner has any benefits above bis damage. Such cost is an item of expense to tbe landowner to secure tbe beneficial result from tbe drainage system and has evidential value in determining tbe question of benefits. Tbe evidence was improperly excluded from tbe case.

Tbe court gave tbe following instruction:

> “Benefits are determined by the difference in fair market value of tbe lands in question June 25, 1913, without tbe proposed drainage system, and with it completed, without regard to cost of construction of tbe general system,, cost to tbe remonstrant of connecting therewith, if be chooses so to do, or damages, if any, resulting to remonstrant by reason of tbe construction of tbe proposed drainage system in and upon bis lands.”

■ Generally speaking, tbe error of tbe circuit court seems to *546have been in regarding the distinction between general and special benefits, sometimes highly proper, as applicable to the questions before the jury on this special proceeding, and in considering that benefits could only be estimated or arrived at by the very narrow and technical process of considering only evidence bearing directly upon the point, when he should have thrown open the case for the widest investigation based on all data available to the commissioners in fixing the amount of benefits.

The order is reversed, and the cause remanded for further proceedings according to law. Costs are allowed to appellants.