Board of Sup'rs of Harrison County v. Board of Sup'rs of Crawford County
| Decision Date | 14 December 1943 |
| Docket Number | 46272. |
| Citation | 12 N.W.2d 259,234 Iowa 123 |
| Parties | BOARD OF SUP'RS OF HARRISON COUNTY et al. v. BOARD OF SUP'RS OF CRAWFORD COUNTY et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Crawford County; M. E. Hutchison and Bruce M. Snell, Judges.
Robert K. Brannon, of Denison, for appellants.
William P. Welch, of Logan, for appellees.
This action was tried and submitted to Judge Hutchison, who died before determining it. By agreement of the parties, Judge Snell then decided the case from the record and the transcript. Having been tried as an equitable action, as provided by Section 12442, Code 1939, it is triable de novo on appeal, upon all issues of law and fact whether passed upon by the trial court or not. Austin & Spicer v. Carpenter, 2 G.Greene 131, 134 135; Manning v. Ottumwa Auto Co., 210 Iowa 1182, 1187, 232 N.W. 501; Geil v. Babb, 214 Iowa 263, 267, 242 N.W. 34; Board of Supervisors v. Board of Trustees, 221 Iowa 337, 344 264 N.W. 702.
The Boyer River is the outlet for the water-shed of all of the drainage districts, both plaintiff and defendant. The stream has its source in Buena Vista County and flows in a southwesterly direction, diagonally across Sac, Crawford, and Harrison Counties, into Pottawattamie County where it empties into the Missouri River. Commencing at the mouth of the river and going up stream, the first drainage district is the Harrison-Pottawattamie District No. 1. The upper end of its main ditch is a short distance north of the south line of Harrison County. This district is not involved in this litigation, but the main ditch of the plaintiff district empties into the upper end of the main ditch of the first mentioned district. The main ditch in Boyer Sub. D. D. No. 1 is a little over six miles long and extends in a northeasterly direction. This district was established in 1908 and contains within it the Euclid Sub. D D., established in 1920. Just above the Boyer Sub. D. D. No. 1, and outletting into its main ditch, is the Latta Drainage District, established in 1909, having a main ditch about three miles long, and having three sub district laterals within and without its boundaries. Above the Latta district, and emptying into its main ditch, is the Upper Boyer Drainage District, established in 1910, with a main ditch about eighteen miles long, and having ten sub districts. All of the districts so far mentioned are in Harrison County. Just above the Upper Boyer D. D. and emptying into the upper end of its main, is Boyer Drainage District No. 1. Crawford County, one of the defendants. It was established in 1910, and has three sub districts-Arion, Riddle Cook, and Boyer Township-defendants. The last district, upstream, is the defendant, Paradise Township Drainage District, Crawford County, established in 1921.
Boyer River was a very sinuous stream, and in constructing these drainage improvements, the course of the stream was straightened, and its length was reduced substantially half through the Paradise, Boyer No. 1, Upper Boyer, Latta, and Boyer Sub. No. 1, drainage districts. The main ditch in the plaintiff district has much less fall than the main ditch which traverses the upper districts. The straightening of the course of the stream greatly accelerated the flow of the water through it, and added to the silt and debris which it carried, particularly during high-water periods, and caused much damage to the main ditch in the plaintiff district, by filling it, and by destroying its spoil banks, and flooding the land in this district. It became necessary to remedy these conditions by removing the fill in the main ditch at and above the outlet in this district, to deepen and widen the ditch, rebuild the levees, and to make other repairs.
Section 7563, Code of 1939, provides: Sections 7564, 7565, 7566, 7567 and 7568 provide generally for the appointment of commissioners to assess these benefits, and to make report of their apportionment to the board of supervisors of the county in which the repairs have been made, who shall pass upon the report, and order the levy of the assessments. The statutory sections are quite general and do not specify many of the details of the procedure. There has been considerable litigation in matters of this kind among drainage districts in the Missouri River watershed, which have been appealed to this court. Under the statutes, as construed by our decisions, the trustees of any drainage district, or, if there be none, the board of supervisors of the county of the drainage district, in which the improvement or repairs are to be made, have charge thereof, appoint the commissioners, pass upon their apportionment of the expense of the improvement, and if the districts to be charged are under the control of the board, they levy the assessments. If some of the districts to be charged are not under their control, but are in other counties, they notify the proper board of the assessments apportioned to the respective districts under it, and direct it to levy the assessments. See Board of Trustees of Monona-Harrison Dist. No. 1 v. Boards of Supervisors of Monona and Woodbury Counties, 198 Iowa 117, 197 N.W. 82; Mayne v. Board of Supervisors of Pottawattamie County, 208 Iowa 987, 223 N.W. 904, 225 N.W. 953; Board of Supervisors of Pottawattamie County v. Board of Supervisors of Harrison County, 214 Iowa 655, 241 N.W. 14; Ward v. Board of Supervisors of Pottawattamie County, 214 Iowa 1162, 241 N.W. 26; Mayne v. Board of Supervisors of Pottawattamie County, 215 Iowa 221, 241 N.W. 29; Board of Supervisors of Harrison County v. Board of Trustees of Pigeon Creek D. D. No. 2, Pottawattamie County, supra, 221 Iowa 337, 264 N.W. 702; Coe v. Board of Supervisors of Harrison County (and three other cases), 229 Iowa 796, 295 N.W. 151; Board of Trustees of Monona-Harrison D. D. No. 1 v. Board of Supervisors of Monona County, Iowa, 5 N.W.2d 189.
It appears from the printed record and the certified transcript of the record below that the material facts are substantially as follows: the work of repair and reconstruction of the main ditch in Boyer Sub-Drainage Dist. No. 1, plaintiff, was begun in January, 1930, and in payment of the work done during the year 1930, said district issued 52 warrants during nine months of the year, commencing January 11 and ending on September 12, 1930, in the aggregate amount of $12,852.93; during the year 1931, for such expense, said district issued its nineteen warrants, during a period of seven months, commencing January 27, 1931 and ending October 12, 1931 for a total amount of $1,587.11; during the year 1932, for such expense, said district issued its twelve warrants for $402.50, during a period of four months, commencing on June 7, and ending on December 3, 1932; during the year 1933, said district issued two warrants on January 9th for such expense for $436.75; and in the year 1934, said district, for this expense, during a period of five months, issued twenty-two warrants, commencing June 5, 1934 and ending November 14, 1934, for $2,163.40; the aggregate amount of warrants thus issued in the five years being $17,442.69; these warrants were all drawn upon the funds of the plaintiff district, and, as they were issued, they were stamped "not paid for want of funds;" on March 1, 1935, a number of property owners in this district petitioned the board of supervisors to spread the cost of this expense over all the land served by the several districts, whose water had their outlet into and through the main ditch of the plaintiff district; on May 9, 1935, an engineer appointed by the Harrison County Board of Supervisors, made an audit of the finances of the plaintiff district and reported unpaid warrants at that time in the sum of $27,598.07, of which sum $17,442.69 of said warrants were issued for widening, enlarging and maintaining the main ditch of the plaintiff district; this sum with interest computed at six percent as of August 1, 1935, made the total amount of warrants ($17,442.69) and interest ($5,323.32) the sum of $22,766.01; on July 22, 1935 the board appointed a commission to apportion this sum among the districts and sub-districts served by the main ditch and outlet of the plaintiff district; the commission reported on September 5, 1935, and apportioned said sum of $22,766.01 among the benefited districts, as follows: Boyer Sub-D. D. No. 1, with its subdistrict, $7,503.68; Latta D. D., with its three sub districts, $1520.77; Upper Boyer D. D. with its ten sub districts, $9,691.49; the defendant districts, Boyer D. D. No. 1, with its three defendant sub-districts, $3,911.14; and Paradise Township D. D., $138.91; 17.79 percent of the total costs and interest was apportioned to the defendant districts; this report and apportionment was approved by the Harrison County Board of Supervisors on December 3, 1935, and the order of approval directed that a copy of the report of apportionment, and of the order of approval, be sent to the Board of Supervisors of Crawford County, with a request that it take the necessary proceedings to assess and levy upon the assessable property in the defendant districts, the respective sums of money apportioned, in the manner required by statute, and that all assessments collected be kept in a separate...
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