Kimball v. Reclamation Fund Commissioners

By the Court, Crockett, J.: It appears from the complaint that the plaintiff is the owner in fee, under a patent issued to him by the State of California, of a quarter section of swamp and overflowed land, situate in the County of Sutter, and which is included within Levee District Ho. 5, organized under the provisions of the Act of March 28th, 1868 (Stats. 1867-8, p. 514), for the reclamation of a large body of swamp and overflowed lands. The defendants constitute the Board of Reclamation Fund Commissioners, appointed and organized under the Act of March 30th, 1872 (Stats. 1871-2, p. 835); and the plaintiff avers in substance, that he is the owner in fee simple absolute of the quarter section referred to, deriving his title thereto under the Act of April 27th, 1863 (Stats. 1863, p. 591), having strictly complied with all its provisions, and having obtained his patent in due form in the year 1864. He further avers that he has taken no part in the proceedings to organize said levee district, and did not and does not now desire to have his land included therein, nor to have it protected from inundation; and that “ for the uses to which he has devoted it and to which he desires to devote it, the said land is rendered more valuable by reason of the annual overflow.” He further avers that he has not consented to any of the proceedings of the Board of Supervisors in their subsequent action in respect to said levee district and the reclamation of lands included therein; but, nevertheless, the Board of Supervisors, after the formation of said district, and as trustees thereof, proceeded with the work of reclamation by causing levees and embankments to be constructed, and in payment therefor issued warrants payable out of the funds of the district, to an amount exceeding one hundred and forty-four thousand dollars, which are still outstanding and unpaid; that the Engineer of the district reported to the Board of Supervisors that he estimated the entire cost of [358]reclaiming said district at six hundred and seventeen thousand nine hundred and eighty-four dollars, of which sum one hundred and forty-four thousand four hundred and seventy-eight dollars had been theretofore expended; that in pursuance of a notice issued by the Board of Supervisors, twelve persons, owning a majority of the whole number of acres included in said district, met at the time and place designated in the notice, and voted unanimously in favor of issuing bonds to provide for the payment of the outstanding indebtedness of the district, and to secure the funds necessary to complete the work at the estimated cost, as authorized by the Act of March 30th, 1872; that the plaintiff had no knowledge of this meeting, and, of course, did not participate in its proceedings, nor has he consented thereto or to the proposition to issue bonds for the purposes specified; that the Reclamation Fund Commissioners were duly notified by the Board of Supervisors of these proceedings, and have caused bonds to be prepared, purporting to be the bonds of said district, to the amount of six hundred and seventeen thousand nine hundred and eighty-four dollars, and are about to issue them under the provisions of the Act of March 30th, 1872, and will do so, unless restrained; that for the purpose of raising funds for the payment of the principal and interest of the bonds, the Board of Supervisors appointed three “Assessment Commissioners,” who proceeded to assess all the lauds included in the district, and amongst others the plaintiff’s quarter section. The complaint then proceeds to recite the several provisions of the statute, from which it appears that the assessment will or may become a lien upon the plaintiff’s land for its proportionate share of the common burden; and the prayer is for an injunction to restrain the defendants from issuing the bonds. A demurrer to the complant was sustained, and the plaintiff' declining to amend final judgment was entered for tire defendants, from which the plaintiff" appeals.