Aldrich v. Paine

• Decision Date: 19 October 1898
• Citation: 106 Iowa 461,76 N.W. 812
• Parties: ALDRICH v. PAINE ET AL.
• Court: Iowa Supreme Court

106 Iowa 461

76 N.W. 812

ALDRICH

v.PAINE ET AL.

Supreme Court of Iowa.

Oct. 19, 1898.

Robinson and Waterman, JJ., dissenting.

Appeal from district court, Wright county; D. R. Hindman, Judge.

A petition having been previously filed with the county auditor, the board of supervisors of Wright county ordered the construction of a ditch commencing in the N. W. 1/4, S. W. 1/4, of section 31, township 92, range 24 W. of the fifth P. M.,--a distance of six miles, and all within the limits of the incorporated town of Clarion, except that part in said section 14. The ditch was constructed in the manner provided by law; that part passing through the two blocks of the platted portion of the town, and as far as the Burlington, Cedar Rapids & Northern Railway,--a distance of 80 rods,--being a tile drain, with tiling two feet in diameter, securely covered. The total cost of $8,733.03 was apportioned and assessed against lands according to the benefits. A writ of certiorari was issued by the district court, and on hearing the petition was found to be signed by the requisite number of adjacent owners, but the board of supervisors was held to have acted without jurisdiction in ordering the construction of the ditch within the limits of the incorporated town of Clarion. The only difference between the petition of the plaintiff and that of intervention of Anna Morrison arises from the situation of their land,--that of Aldrich lying within and that of Morrison without the corporate limits. The defendants appeal. Reversed.McGrath, Peterson & Humphrey and Bottsford, Healy & Healy, for appellants.

Nagle & Nagle and Ladd & Rogers, for appellees.

LADD, J.

The trial court found that a majority of the resident owners of land adjacent signed the petition setting forth the necessity, starting point, termini, and route of the ditch. The record, which must be regarded as conclusive, shows this finding of fact to have been filed on the same day, and presumably at the same time, the decree was entered. It is doubtless true the appellees had no occasion to object to a judgment in their favor. This, however, did not relieve them from excepting to those special findings with which they were not content, and, having failed to do so, they will be deemed to have acquiesced in the conclusions reached. Assurance Co. v. Neil, 76 Iowa, 648, 41 N. W. 382; 8 Enc. Pl. & Prac. 275, and cases collected. As no exception was saved, they cannot be heard to question the correctness of the findings, and their appeal will be dismissed.

2. The question raised by the defendants' appeal is whether the board of supervisors had authority to order the construction of that portion of the ditch within the limits of the incorporated town of Clarion. Section 1207 of the Code of 1873 is as follows: “The board of supervisors of any county having a population of five thousand inhabitants, as shown by the last preceding census, may locate and cause to be constructed ditches or drains, or change the direction of any watercourse in such county, whenever the same will be conducive to the public health, convenience or welfare.” This language is general, and the authority of the board is not restricted in terms or by necessary inference to territory outside of towns and cities. Nor is there any such limitation in any of the sections of this chapter, or amendments thereto, or of chapter 186 of the Acts of the 20th General Assembly. The situation may sometimes be such that the ditch must pass through corporate limits in order to carry off the water from lands drained to a stream, and large areas of land requiring proper drainage may lie within such limits. The authority apparently granted to the board of supervisors must be held to extend to all parts of the county unless so repugnant to the powers granted to cities and towns as to indicate a contrary legislative intention. The decision of this question involves a somewhat detailed consideration of the drainage laws of this state, and of those powers exercised by cities and towns said to be antagonistic to the construction and maintenance of ditches and drains within their limits under the authority of the county. Section 1208 of the Code of 1873 requires that a “petition signed by a majority of persons, resident of the county, owning land adjacent to such improvement shall be first filed in the office of the county auditor, setting forth the necessity of the same, the starting point, route and termini.” In addition to this, the basis of the proceeding may be a “petition of one hundred legal voters of the county setting forth that any body or district of land in said county, described by metes and bounds, or otherwise is subject to overflow or too wet for cultivation; and that in the opinion of petitioners the public health, convenience, or welfare, will be promoted by draining or leveeing the same.” Acts 20th Gen. Assem. c. 186, § 2. The satisfactory and economical construction of the ditch is assured by preliminary provisions requiring a survey and report with plat and profile, notice to the owners of the land to be affected, the filing of claims for damages, the hearing by the board of supervisors, and, if ordered, then the division of the ditch into sections, and the letting the work to the lowest bidder. Payment is made “out of the county treasury, from the fund to be collected for that purpose, on the order of the county auditor.” Section 1214 is as follows: “The supervisors shall make an equitable apportionment of the costs, expenses, costs of construction, fees, and compensation for property appropriated, or damages sustained by the change of direction of such water course, which shall accrue and be assessed, among the owners of the land benefited by the location and construction of such ditch, drain, or water course, in proportion to the benefit to each of them through, along the line, or in the vicinity of whose lands the same may be located and constructed respectively. And the same may be levied upon the lands of the owners so benefited in said proportions, and collected in the same manner that other taxes are levied and collected for county purposes. And said supervisors shall when necessary, cause said ditches, drains, or water course to be re-opened and repaired, and the costs thereof shall be apportioned, assessed, levied and collected as hereinbefore provided for the costs of the construction of such ditches, or drains, and the amount so collected shall be paid out of the county treasury from the fund collected for that purpose on the order of the county auditor. And the diverting, obstructing, impeding or filling up of such drains, ditches or water courses in any manner by any person without legal authority, is hereby declared a nuisance, and any person convicted of such crime, shall be punished, as provided in title 24 of chapter 15 of the Code for the punishment of nuisances.” It will be observed that any abuse of power by the board of supervisors is carefully guarded against by the requirement of petitions, and the opportunity of being heard afforded every owner of land to be affected; also that, although the necessity for the ditch lies in the public health, convenience, or welfare, those whose lands are beneficially affected must pay for the improvement. No authority is conferred on incorporated towns to construct ditches or drains in the manner or for the purposes here contemplated. Section 480 of the Code of 1873 authorizes municipal corporations “to cause any lot of land within their limits on which water at any time becomes stagnant to be filled up or drained in such manner as may be directed by a resolution of the council or trustees.” But this very evidently relates to water standing in depressions or pools, and not to large areas of low, wet, or swampy land which absorbs the water, and on which it seldom stands, and never becomes stagnant. Besides, the authority of the council is limited to ordering such drainage only, or the lot to be so filled, as to obviate the nuisance occasioned by the standing of stagnant water. Bush v. City of Dubuque, 69 Iowa, 236, 28 N. W. 542.

Again, under section 18 of chapter 116 of the Acts of the 16th General Assembly (now section 699 of the Code) the owner or lessee of land, who, by grading or filling it, obstructs the flow of water through a water course of any kind, may be required to construct a sufficient drain or passageway. This amounts to no more than the restoration of the natural course for surface or other water. Cities are authorized “to deepen, widen, cover, wall, alter or change the channel of water courses within their corporate limits,” by section 3 of chapter 89 of the Acts of the 19th General Assembly, and, in addition to this, any city of the first class may “build and construct artificial channels, covered drains or sewers sufficient to carry the water theretofore flowing in any such water courses,” divert it thereto, and fill up the old channel. Acts 23d Gen. Assem. c. 6, § 1. These enactments were long subsequent to the statutes giving authority to the board of supervisors, and, as they relate to cities only, do not aid in determining the point to be settled. They make clear, however, that the legislature was of the opinion the particular powers granted were not previously possessed by cities. The power to change any water course has never been conferred on the incorporated town, and does not exist, unless as possibly incidental to the care of the streets. See Freburg v. City of Davenport, 63 Iowa, 110, 18 N. W. 705;Knostman v. City of Davenport (Iowa) 68 N. W. 887;Morris v. City of Council Bluffs, 67 Iowa, 343, 25 N. W. 274. Our attention is called to the statute giving the town authority to grade and repair streets and alleys and to construct sewers, and requiring that it shall defray the expenses of the same out of the general funds of such city or town. Code 1873, § 465. This refers to the building of sewers along the public...