Bd. of Supervisors of Pottawattamie Cnty. v. Bd. of Supervisors of Harrison Cnty.
| Citation | 214 Iowa 655,241 N.W. 14 |
| Decision Date | 09 February 1932 |
| Docket Number | No. 40961.,40961. |
| Parties | BOARD OF SUPERVISORS OF POTTAWATTAMIE COUNTY ET AL. (MAYNE ET AL., INTERVENERS) v. BOARD OF SUPERVISORS OF HARRISON COUNTY ET AL. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Harrison County; O. D. Wheeler, Judge.
This was a proceeding by the plaintiffs and interveners in mandamus to compel the defendants, supervisors of Harrison county, to levy an assessment against the land in Pigeon creek drainage district in that county to pay a portion of the drainage improvement cost in drainage district No. 2 in Pottawattamie county, under section 1989-a24 of the 1913 Supplement to the 1897 Code and chapter 332, Acts of the Thirty-Eighth General Assembly. The relief was denied by the district court, and the plaintiffs and interveners appeal.
Reversed in part, affirmed in part, and remanded.
John P. Organ, of Council Bluffs, for appellants.
Geo. H. Mayne and J. J. Hess, both of Council Bluffs, for interveners.
Frank Tamisiea of Missouri Valley, and Robertson & Wolfe, of Logan, for appellees.
Generally speaking, Pigeon creek drains a valley extending through Harrison and Pottawattamie counties. Harrison county is immediately north of, and adjacent to, Pottawattamie county. The aforesaid stream, so far as the record is concerned, arises at an indefinite point either in Harrison or some other county above it, and runs in a southwesterly direction through all or part of Harrison county into Pottawattamie county, through which it continues southwesterly until finally emptying into the Missouri river.
Three drainage districts have been established in the valley of Pigeon creek for the purpose of straightening the stream to afford better drainage for the adjacent land, and protect the same from overflow. Pigeon creek drainage district No. 2, in Pottawattamie county, established in 1903, skirts the Missouri river and is bounded thereby on the south and west. That district is represented by the Pottawattamie county board of supervisors, who are the plaintiffs and appellants in this case.
J. H. Mayne et al., interveners and appellants, are landowners in Pigeon creek drainage district No. 2, and consequently, so far as this litigation is concerned, they have interests identical with those of the plaintiffs-appellants. For convenience, said plaintiffs and interveners hereafter will be referred to as the appellants.
Immediately adjacent to and northeast of Pigeon Creek drainage district No. 2 is Pigeon creek drainage district No. 8, extending northeasterly along the valley of Pigeon creek to the north line of Pottawattamie county and the south line of Harrison county. Said district was established in 1910. North and east of Pigeon creek drainage district No. 8 is the Harrison county district along Pigeon creek, represented in this litigation by the Harrison county board of supervisors, the defendants-appellees. The latter ditch was established in 1920. This district extends from the Harrison-Pottawattamie county division line northeasterly along Pigeon creek to a point approximately five and one-half miles from the division line.
In 1924, the Pottawattamie county board of supervisors determined to repair the drainage improvement in district No. 2 by cleaning out the upper channel or ditch (the portion thereof farthest from the Missouri river), and reconstructing the levees along the same. Accordingly, contracts were let and the work completed; hence, that is one item of the costs involved in this litigation. Another item thereof is additional right of way condemned for the construction of new levees. These two items, generally speaking, contain the costs involved for the work authorized in 1924.
Thereafter, in 1925, the Pottawattamie county board of supervisors again authorized additional work on the lower part of the ditch or channel (the portion nearest the Missouri river). Such work consisted of the removal and reconstruction of levees along the lower ditch. Thus it is seen that the so-called upper portion of the work was authorized by the Pottawattamie county board of supervisors in 1924, while that board initiated proceedings for the improvement of the lower portion of the ditch in 1925. That difference in dates of authorization becomes material, because the statute allowing the distribution of assessments between upper and lower districts was changed after the first work, but before the second was initiated. When the first work was authorized, section 1989-a24 of the 1913 Supplement to the 1897 Code, and chapter 332, Acts of the Thirty-Eighth General Assembly, were in force. See Mayne v. Board of Supervisors, 208 Iowa, 987, 223 N. W. 904, 225 N. W. 953. This legislation contained the following provisions:
Section 1989-a24, 1913 Supplement to 1897 Code: “When two or more districts shall have their outlet or discharge into the same natural watercourse or stream and it shall become necessary to deepen or enlarge said natural watercourse or stream, each district shall be assessed for the cost of such work in the same ratio to such total cost as the discharge of waters of such district bears to the combined discharge of waters of the several districts emptying into said natural watercourse or stream. * * *”
Chapter 332, Acts of Thirty-Eighth General Assembly:
In October 1924, and before the 1925 work had been authorized and contracts therefor let, the above-quoted statute was amended and became section 7563 of the 1924 Code. The amended section, as now set forth in section 7563 of the 1924 Code, so far as material, reads as follows: “* * * Each district shall be assessed for the cost of such work in proportion to the benefits derived.” (The italics are ours.)
It is to be noticed that the old law required distribution of such costs among the districts according to the ratio of water discharged by each district; while the new legislation makes benefits the basis for the division of such costs. After the upper and lower work above designated had been let, the statutory commissioners in drainage district No. 2 were asked by the county supervisors, in accordance with section 7564 of the 1924 Code, to make a reclassification of lands for assessment purposes in the district. Such reclassification was made and objections were filed to the assessments thereunder by landowners in the district.
A hearing was had on the objections, but the board of supervisors sustained the commissioners. From that ruling, certain propertyowners appealed to the district court of Pottawattamie county, where the ruling of the county supervisors was sustained. An appeal was taken to this court from that ruling of the district court. See Mayne v. Board of Supervisors (208 Iowa, 987, 223 N. W. 904, 225 N. W. 953), supra.
One objection of the property owners to the assessment confirmed by the district court in the Mayne Case was that the costs of the foregoing improvement should be distributed among the various districts above named in accordance with section 1989-a24 of the 1913 Supplement to the 1897 Code, and chapter 332, Acts of the Thirty-Eighth General Assembly, both previously quoted. That contention was sustained by this court, as shown by the foregoing Mayne Case. Following that decision, commissioners were appointed in drainage district No. 2 to apportion the costs of both improvements among the three districts, on the theory of section 1989-a24 of the 1913 Supplement to the 1897 Code, and chapter 332, Acts of the Thirty-Eighth General Assembly.
On November 1, 1929, the Pottawattamie county board of supervisors reviewed the findings of the commissioners, and made an apportionment among the three districts in accordance with their recommendation. As a result of that proceeding, the amounts fixed for the three districts were, respectively, as follows: Harrison county district, represented by appellees, $6,856.94; district No. 8 in Pottawattamie county, $17,142.35; district No. 2 in Pottawattamie county, $18,856.59. A claim for the amount allotted to the Harrison county district was then presented by the Pottawattamie county supervisors, representing Pigeon creek district No. 2, to the board of supervisors of Harrison county, representing the Harrison county district on Pigeon creek. The Harrison county board refused to make the assessment according to the apportionment, or on any other basis, and the present action was commenced December 12, 1929, to compel the supervisors of Harrison county: First, to allow the claim against the Harrison county district; and, second, to make an assessment against the land in the Harrison county district for the purpose of covering the aforesaid sum apportioned to that district.
Following a hearing in the district court in the case at bar, appellants' relief was denied and their petition dismissed. Consequently they appeal.
At the outset, it is argued by the appellees that the ruling of the district court should be sustained because section 1989-a24 of the 1913 Supplement to the 1897 Code and chapter 332, of...
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