DeNny v. Des Moines Cnty.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMcCLAIN
Citation121 N.W. 1066,143 Iowa 466
Decision Date02 July 1909
PartiesDENNY ET AL. v. DES MOINES COUNTY ET AL.

143 Iowa 466
121 N.W. 1066

DENNY ET AL.
v.
DES MOINES COUNTY ET AL.

Supreme Court of Iowa.

July 2, 1909.


Evans, C. J., and Weaver, J., dissenting.

Appeal from District Court, Des Moines County; W. S. Withrow, Judge.

The plaintiffs petitioned the board of supervisors of Des Moines county to establish a drainage district covering certain described land belonging to them and others. An engineer appointed by the board presented his report, recommending the establishment of a drainage district of 28,000 acres within the territory of the defendant county. Remonstrances were filed signed by 114 persons, and, proper notices having been served, a hearing was had before the board, which as a result of said hearing, found that the proposed district was not for the public benefit or utility, or conducive to the public health, convenience, or welfare, and refused to establish the proposed district. The petitioners appealed from this action of the board to the district court, which held that, while there was evidence introduced by the petitioners tending to show that said improvement would drain agricultural lands, and would be a public utility, and conducive to the public health, convenience, and welfare, and that the plan proposed was the only plan by which the agricultural lands within the territory described could be satisfactorily drained, the act of the board in refusing to establish the district was the exercise of legislative functions, and not judicial, and therefore dismissed the appeal for want of jurisdiction in the court to hear the same. From this ruling of the district court the petitioners appeal. Affirmed.

[121 N.W. 1067]

Seerley & Clark, for appellants.

Poor & Poor, Blake & Wilson, and H. F. Kuhlemeier, for appellees.


McCLAIN, J.

The proceedings provided by Acts 30th Gen. Assem. p. 61, c. 68, as amended by Acts 32d Gen. Assem. p. 98, c. 94 (Code Supp. 1907, § 1989a1 et seq.), so far as involved in the determination of the questions presented in this case, are substantially as follows: A petition signed by one or more of the landowners whose lands are to be affected by the proposed improvement, accompanied by a bond for the payment of all costs and expenses incurred in the proceedings in case the supervisors do not grant the prayer of the petition, may be filed with the county auditor, describing the proposed drainage district, alleging that the lands so described are subject to overflow, and too wet for cultivation, and that the public benefit or utility, or the public health, convenience, or welfare, will be promoted by draining the same. The board of supervisors of the county, which is expressly authorized to have jurisdiction, power, and authority to establish a drainage district, and cause to be constructed ditches or drains therein whenever the establishment of such district and the drainage thereof will be of public utility, or conducive to the public welfare (the drainage of surface waters from agricultural lands being expressly declared to be a public benefit, and conducive to the public health, convenience, and welfare), is directed to thereupon appoint an engineer, who shall proceed to examine the lands described, and other lands which would be benefited by the said improvement, or necessarily affected in carrying it out, who shall thereupon survey and locate such drains, etc., as may be practicable and feasible to carry out the purposes of the petition, and which will be of public benefit or utility, or conducive to public health, convenience, or welfare, and make return of his proceedings to the county auditor with plats, profiles, etc., and a description of each tract of land within the proposed district, together with the probable cost, and such other views and recommendations as he may deem material. If the engineer recommends the establishment of the drainage district, the board is then to examine his return, and if the plan seems to be expedient, and meets the approval of the board, it shall direct the auditor to cause a notice to be given of the proposed establishment of the district. Before the day set for hearing claims for damages must be filed in the auditor's office. At the hearing on the petition the supervisors shall determine the sufficiency of the petition in form and matter, and, if deemed necessary, they may view the premises, and if “they shall find that such drainage district would not be for the public benefit or utility or 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 claims shall

[121 N.W. 1068]

have been filed for damages, they may, if deemed advisable, locate and establish the same in accordance with the recommendations of the engineer, or they may refuse to establish the same if they may deem best.” If claims have been filed for damages, then the proceedings may be continued for an assessment of damages by appraisers, and the supervisors shall on a further hearing consider the amount of damages awarded by the appraisers in reaching a final determination in regard to establishing such drainage district; and, if in their opinion the cost of construction and the amount of damages is not excessive, and a greater burden than should be properly borne by the land benefited, they shall locate and establish the same. Any party aggrieved may appeal from the finding of the board in establishing, or refusing to establish, the district, or from its finding in the allowance of damages to the district court, which appeal shall be tried in that court as an ordinary proceeding, except that when the appeal is from the order of the board in establishing, or refusing to establish, the district, it shall be tried in equity, and the court shall enter such order as may be proper in the premises. It is then provided that the costs and damages as determined by the board of supervisors, or by the district court on appeal, shall be assessed against the property benefited in proportion to the benefits.

From this general statement of the statutory provisions on the subject it clearly appears that a discretion is vested in the supervisors to determine: First, on evidence presented and on their view of the premises, if deemed necessary, whether the establishment of the drainage district would be for the public benefit or utility, or conducive to the public health, convenience, or welfare; and, second, if damages are claimed, whether the cost of construction and amount of damages awarded is a greater burden than should be properly borne by the land benefited. If, as to either of these matters submitted to their consideration, the supervisors determine that it is not advisable in their...

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42 practice notes
  • Stahl v. Bd. of Sup'rs of Ringgold Cnty., No. 32486.
    • United States
    • United States State Supreme Court of Iowa
    • January 12, 1920
    ...is indulged to support the action of the board (see Temple v. County, 134 Iowa, 706, 112 N. W. 174;Denny v. County, 143 Iowa, 466, 121 N. W. 1066;Prichard v. County, 150 Iowa, 584, 129 N. W. 970;In re Ryers, 472 N. Y. 1, 28 Am. Rep. 88; Railroad v. County, 144 Iowa, 171, 176, 122 N. W. 820;......
  • City of Hattiesburg v. First Nat. Bank of Hattiesburg, No. 7761.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • August 22, 1934
    ...officers to 8 F. Supp. 163 whom it delegated the exercise of legislative and executive power.' Denny v. Des Moines County, 143 Iowa, 466, 121 N. W. 1066. "The case before the district court upon appeal is not only to be tried as an equity proceeding, but the parties have the same right of a......
  • Hunter v. Colfax Consol. Coal Co., No. 30268.
    • United States
    • United States State Supreme Court of Iowa
    • November 24, 1915
    ...quasi judicial functions, or provision may be made for their determination by courts of law. We said in Denny's Case, 143 Iowa, 474, 121 N. W. 1066, that: “Of course the Legislature may provide for a review in the courts of the action of a tribunal, legislative in character, which it has re......
  • Sabre v. Rutland R. Co.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 21, 1913
    ...by the commission is the exercise of legislative authority, which the court cannot exercise." In Denny v. Des Moines Co., 143 Iowa, 466, 121 N. W. 1066, it was held that a determination by a board of supervisors that the establishment of the district and the making of the contemplated publi......
  • Request a trial to view additional results
42 cases
  • Stahl v. Bd. of Sup'rs of Ringgold Cnty., No. 32486.
    • United States
    • United States State Supreme Court of Iowa
    • January 12, 1920
    ...is indulged to support the action of the board (see Temple v. County, 134 Iowa, 706, 112 N. W. 174;Denny v. County, 143 Iowa, 466, 121 N. W. 1066;Prichard v. County, 150 Iowa, 584, 129 N. W. 970;In re Ryers, 472 N. Y. 1, 28 Am. Rep. 88; Railroad v. County, 144 Iowa, 171, 176, 122 N. W. 820;......
  • City of Hattiesburg v. First Nat. Bank of Hattiesburg, No. 7761.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • August 22, 1934
    ...officers to 8 F. Supp. 163 whom it delegated the exercise of legislative and executive power.' Denny v. Des Moines County, 143 Iowa, 466, 121 N. W. 1066. "The case before the district court upon appeal is not only to be tried as an equity proceeding, but the parties have the same right of a......
  • Hunter v. Colfax Consol. Coal Co., No. 30268.
    • United States
    • United States State Supreme Court of Iowa
    • November 24, 1915
    ...quasi judicial functions, or provision may be made for their determination by courts of law. We said in Denny's Case, 143 Iowa, 474, 121 N. W. 1066, that: “Of course the Legislature may provide for a review in the courts of the action of a tribunal, legislative in character, which it has re......
  • Sabre v. Rutland R. Co.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 21, 1913
    ...by the commission is the exercise of legislative authority, which the court cannot exercise." In Denny v. Des Moines Co., 143 Iowa, 466, 121 N. W. 1066, it was held that a determination by a board of supervisors that the establishment of the district and the making of the contemplated publi......
  • Request a trial to view additional results

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