Sisson v. Board of Sup'rs of Buena Vista County

• Decision Date: 13 July 1905
• Citation: 104 N.W. 454,128 Iowa 442
• Parties: E. R. SISSON, Appellant, v. BOARD OF SUPERVISORS OF BUENA VISTA COUNTY, ET AL., Appellees
• Court: Iowa Supreme Court

104 N.W. 454

128 Iowa 442

E. R. SISSON, Appellant, v. BOARD OF SUPERVISORS OF BUENA VISTA COUNTY, ET AL., Appellees

Supreme Court of Iowa, Des Moines

July 13, 1905

Appeal from Buena Vista District Court.--HON. A. D. BAILIE, Judge.

ACTION in equity to restrain by injunction the defendant board of supervisors from further proceeding in the matter of constructing a ditch designed and intended to reclaim by drainage a considerable tract of agricultural lands in said county, to establish a drainage district, etc. The defendants appeared and answered, whereupon the plaintiff moved for a decree in his favor upon the pleadings, and a decree was made and entered in which a portion only of the relief prayed for was granted. Both parties appeal, and for convenience the plaintiff will be denominated as appellant. Affirmed on plaintiff's appeal. Reversed on defendant's appeal.

Affirmed on plaintiff's appeal. Reversed on defendants' appeal.

Mack & Deland, for appellant.

F. F Faville and A. L. Whitney, for appellees.

OPINION

BISHOP, J.

The pleadings disclose that the proceedings on the part of the defendant board complained of were being taken and had pursuant to the provisions of chapter 68, page 61, Acts 30th General Assembly. Plaintiff makes direct allegation that the steps already taken were in strict conformity to the provisions of that act, and that, in respect of the further proceedings to be had, exact compliance in all respects with the requirements of the act was intended. And of these matters the answer makes admission. It is the contention of plaintiff, to be stated in detail presently, that the proceedings so being had and proposed to be had are unauthorized and illegal, for that the act of the General Assembly under which done, in respect at least of many of its provisions, is in contravention of the Constitution and void. And this is the general subject presented for our consideration.

Necessary to a consideration of the questions as precisely made and presented by the record, we should have the material provisions of the act before us, and we set out the same in substance, as follows:

The act is entitled An act to promote the public health, convenience and welfare, by leveeing, ditching and draining the lands of the State, and providing for the establishment of levees, drainage districts, or for the changing of natural water courses to secure better drainage, and providing for the construction of ditches, drains and water courses and prescribing the method for so doing, and providing for the assessment and collection of the costs and expenses of the same, and issuing improvement certificates, or issuing and selling bonds therefor.

Section 1 provides that the board of supervisors of any county shall have jurisdiction, power and authority to establish a drainage district or districts, and cause to be constructed as hereinafter provided any . . . ditch, drain or water course, . . . in such county, whenever the same will be of public utility or conducive to the public health, convenience or welfare, and the drainage of surface waters from agricultural lands shall be considered a public benefit and conducive to the public health, convenience, utility and welfare.

Sec. 2. Whenever a petition signed by one or more of the land owners whose lands will be affected by, or assessed for the expenses of, the proposed improvement, shall be filed in the office of the county auditor setting forth that any body or district of land in the county, described . . . is subject to overflow or too wet for cultivation, and that the public benefit or utility or the public health, convenience or welfare will be promoted by draining, ditching, tiling or leveeing the same, . . . the board shall at its first session thereafter . . . appoint a disinterested and competent engineer . . . and he shall proceed to examine and survey the lands described in said petition, and other lands if necessary, and locate such improvement or improvements, . . . as will be for the public benefit or utility, or conducive to the public health, convenience or welfare and he shall make return of his proceedings to the county auditor, etc.

By section 3 it is provided that, if the engineer recommend the establishment of the drainage district, the auditor shall, in a prescribed manner, give notice of the pendency of the petition, the favorable report of the engineer, the day set for hearing before the board of supervisors, and that all claims for damages must be filed five days before such day for hearing.

Sec. 5. The board of supervisors at the session set for the hearing on said petition . . . shall thereupon proceed to hear and determine the sufficiency of the petition in form and manner, . . . and, if deemed necessary, the board may view the premises and if they shall find that such . . . drainage district would not be for the public benefit or utility nor conducive to the public health, convenience or welfare, they shall dismiss the proceedings; but, if they shall find such improvement conducive to the public health, convenience or welfare or to the public benefit or utility, and no claim shall have been filed for damages as provided in section four hereof, they may, if deemed advisable, locate and establish the same in accordance with the recommendations of the engineer, but if any claims have been filed for damages, . . . then the board . . . shall proceed no further than to determine the necessity of the . . . drainage district and further proceedings shall be continued to an adjourned, regular or special session, the date of which shall be fixed at the time of the adjournment; and the county auditor shall appoint three appraisers to assess such damages, etc.

Sec. 6. The appraisers . . . shall proceed to . . . determine and fix the amount of damages to which each claimant is entitled and shall . . . file with the county auditor reports in writing showing the amount of damages sustained by each claimant. . . . When the time for final action shall have arrived, and after the filing of the report of the appraisers, said board shall consider the amount of damages awarded in their final determination in regard to establishing such levee or drainage district, and if in their opinion the cost of construction and the amount of damages awarded is not excessive and a greater burden than should be properly borne by the land benefited by the improvement, they shall locate and establish the same, and shall thereupon proceed to determine the amount of damages sustained by each claimant, and may hear evidence in respect thereto, and may increase or diminish the amount awarded in respect thereto, and any party aggrieved may appeal from the finding of the board in establishing the improvement district, or from its finding in the allowance of damages, to the district court, . . . which appeal shall be tried in the district court as an ordinary proceeding, except that when the appeal is from the order of the board in establishing the . . . drainage district, it shall be tried in equity.

Sec. 7. The amount of damages finally determined by the board in favor of any claimant . . . shall be required to be paid in the first instance by the parties benefited by the said levee or drainage district, or secured to be paid upon such terms and conditions as the county auditor may deem just and proper, and after such damages shall have been paid or secured as aforesaid, the board shall divide said improvement into suitable sections, etc.

Sec. 12. When the . . . drainage district . . . shall have been located and established as provided for in this act, . . . the board shall appoint three commissioners; . . . and they shall within twenty days after such appointment personally inspect and classify all the lands benefited by the location and construction of such . . . drainage district, or the repairing or reopening of the same, . . . in a graduated scale of benefits, to be numbered according to the benefit to be received by the proposed improvement; and they shall make an equitable apportionment of the costs, expenses, costs of construction, fees and damages assessed for the construction of any such improvement, or the repairing or reopening of the same, and make report thereof in writing to the board of supervisors. . . . This classification when finally established shall remain as a basis for all future assessments connected with the objects of said levee or drainage district, unless the board, for good cause, shall authorize a revision thereof. . . . The auditor shall cause notice to be served . . . of the time and manner provided for the establishment of a . . . drainage district, which notice shall state the amount of special assessments apportioned to such owner, upon each tract or lot, the day set for hearing the same before the board of supervisors and that all objections thereto must be made in writing and filed with the county auditor on or before noon of the day set for such hearing. When the day set for hearing shall have arrived, the board of supervisors shall proceed to hear and determine all objections made and filed to said report and may increase, diminish, annual or affirm the apportionment made in said report or in any part thereof as may appear to the board to be just and equitable; but in no case shall it be competent to show that the lands assessed would not be benefited by the improvement, and when such hearing shall have been had the board shall assess such apportionment so fixed by it upon the lands within such levee or drainage district.

By section 20 it is provided that when any ditch or drain shall cross a public highway the cost of construction shall be paid by the township trustees from the road fund of such township and whenever a bridge over...