Wurts v. Hoagland

This was a writ of error by the devisees of Mary V. Wurts to reverse a judgment confirming an assessment of commissioners for the drainage of lands under the statute of New Jersey of March 8, 1871, the material provisions of which are as follows:

By section 1 'the board of managers of the geological survey, on the application of at least five owners of separate lots of land included in any tract of land in this state which is subject to overflow from freshets, or which is usually in a low, marshy, boggy, or wet condition,' are authorized to examine the tract, and, if they deem it for the interest of the public and of the landowners to be affected thereby, then to make surveys, and decide upon and adopt a system of drainage, and report it to the supreme court of the state; and thereupon the court, upon reasonable notice published in a newspaper circulating in the county where the tract is, shall appoint three commissioners to superintend and carry out the system of drainage so adopted and reported: 'provided, that if, at the time fixed for such appointment of commissioners, it shall appear to the court by the written remonstrance of the owners of a majority of the said low and wet lands, duly authenticated by affidavit, that they are opposed to the drainage thereof at the common expense, then the said court shall not appoint such commissioners.'

By section 2, the commissioners shall cause the tract to be drained in accordance with the general plan of the board of managers, and, after the completion of the work, report to the supreme court the expense thereof, together with a general description of the lands which, in their judgment, ought to contribute to the expense. Notice of the report shall be published for four weeks, in order that any persons interested may examine the report, and file objections to it. If any such objections are filed within the four weeks, the supreme court shall determine upon the same in a summary manner, and, without further notice, make an order directing the commissioners 'to distribute and assess the amount of said expense, and interest, upon the lands contained within the territory reported by them originally, or as corrected by the supreme court, in proportion, as near as they can judge, to the benefit derived from said drainage, by the several parcels of land to be assessed.' The assessment, when completed, shall be deposited in some convenient place for inspection by the parties interested, and notice of the completion of the assessment, and of the place where it is deposited, published for six weeks, designating a time and place when and where the commissioners will meet to hear objections to the assessment; and the commissioners, having heard and decided upon such objections as shall be made to them, shall proceed to complete their assessment and file it in the clerk's office of the supreme court, and notice of the filing shall be published for four weeks, after which, if no objections have been made to the assessment, it shall be confirmed by the court; any objections filed within the four weeks the supreme court shall hear and determine in a summary manner, but 'shall not reverse said assessment, or any part thereof, except for some error in law, or in the principles of assessment, made or committed by said commissioners.' If for any such cause the assessment, or any part thereof, shall be reversed, it shall be referred to the commissioners, to be corrected accordingly, and, when it shall have been corrected and filed, like proceedings shall be had, until the court shall finally confirm the assessment; and thereupon the commissioners shall publish notice for four weeks, requiring the several owners, or ther parties interested in the lands assessed, to pay their assessments.

By section 3 further provisions are made for collecting the assessment by demand on the owner of the lands assessed, and if he cannot be found, or neglects or refuses to pay, then by sale of his land for the least number of years that any person will take the same.

By section 5 the commissioners may from time to time borrow the necessary moneys to carry on the work of draining the lands, and give their bonds as such commissioners therefor, and pledge for the repayment thereof the assessment to be made as aforesaid.

By proceedings had in accordance with this statute, the board of managers of the geographical survey, upon the application of more than five owners of separate lots of land situated in the tract of land known as the 'Great Meadows,' on the Pequest river, examined and surveyed the entire tract, and reported a plan for draining it to the supreme court, and on November 15, 1872, three commissioners were appointed to carry the plan into execution. Pending the proceedings, on March 19, 1874, a supplemental statute was passed, by section 2 of which, 'if the said commissioners, after having commenced the drainage of such tract, and proceeded therewith, shall, before the drainage of the same shall be completed, be compelled to suspend the completion thereof, from any inability at that time to raise the money required therefor, they shall proceed to ascertain the tracts of land benefited or intended to be benefited by said drainage, and the relative proportions in which the said respective tracts have been or will be benefited thereby, and also the expenses already incurred in said drainage and, as near as may be, the additional expenses required for the completion thereof,' and make and report to the court an assessment of such expenses. In accordance with that provision of the statute of 1874, the commissioners, before completing the work, made and reported to the court an assessment based upon an estimate of contemplated benefits, which was, for that reason, upon objections filed by Mrs. Wurts, set aside by an order of the supreme court, affirmed by the court of errors. 39 N. J. Law, 433; 41 N. J. Law, 175.

On May 17, 1879, after the completion of the work, the commissioners made a report to the court, pursuant to the statute of 1871, showing the expense to have been $107,916.07. No objections to that report having been filed, after four weeks' notice, the court, on June 23d, ordered the commissioners to distribute that sum 'upon the lands mentioned in their said report, in proportion, as nearly as they can judge, to the benefit derived from said drainage by the several parcels of land to be assessed.' The commissioners made an assessment accordingly, the proportion of which on the lands of Mrs. Wurts was $13,347.84, and after notice to and hearing of all parties who desired to object to the assessment, reported it to the supreme court, which directed it to be modified as to certain lands of other parties lying outside the original survey, and in other respects confirmed the assessment, notwithstanding objections made to it by the devisees of Mrs. Wurts; and its judgment was affirmed in the court of errors. 42 N. J. Law, 553; 43 N. J. Law, 456. The judgment of the court of errors was the final judgment in the case, and this writ of error was addressed to the supreme court, because at the time of suing out the writ of error the record had been transmitted to that court, and was in its possession. 105 U.S. 701.

The error assigned was that 'the act of March 8, 1871, upon which the said judgment and proceedings are founded, violates the constitution of the United States in this, that it deprives the plaintiffs in error of their property without due process of law, and denies to them the equal protection of the laws, and violates the first section of the fourteenth amendment to the constitution of the United States.'

S. U. Shipman and ''Saml. Dickson'', for plaintiffs in error.

Theodore Little, for defendants in error.

GRAY, J.