Fleming v. Hull
| Decision Date | 20 December 1887 |
| Parties | FLEMING v. HULL ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Mahaska county; J. K. JOHNSON, Judge.
Plaintiff, Orrin Fleming, owned certain land through which defendants, E. C. Hull and others, as the trustees of the town, attempted to lay out a ditch, for the benefit of the lands of a private individual. The further facts are recited in the opinion.Blanchard & Preston, for appellants.
John F. & W. R. Lacey and Bolton & McCoy, for appellee.
Chapter 188, Acts 20th Gen. Assem., provides “that whenever any person shall desire to contruct any tile or other under-ground drain through the land of another, and he shall be unable to agree with the owner or owners of such land as to the same, he may file with the clerk of the township where said land is situated an application therefor, giving a description of the land or lands through which he may desire to construct the same.” Following this are provisions requiring the clerk to notify the township trustees, who are required to fix a time for hearing the application, and notice of the hearing is required to be served on the applicant and land-owner. It is then provided that, at such time, “the trustees may fix the point or points of entrance and exit or outlet of said tile or other under-ground drain on said land, the general course of the same through said land, the size and depth of the same, when the same shall be constructed, how kept in repair, what connections may be made with the same, what compensation, if any, shall be made therefor, or any other questions arising in the construction of the same, and they shall reduce their finding to writing, which shall be filed with the clerk of said township, who shall record it in full in his book of records of said township; and said finding and decision shall be final, except as to the amount of damages, if any such shall be awarded.” It is further provided that “either party may appeal to the circuit court of said county from so much of said finding and order as relates to the amount of damages: * * * provided, however, that said appeal shall not delay the construction of said tile or other underground drain, if the applicant shall, in case the land-owner appeals, deposit with the township clerk the amount of damages awarded by the trustees, and, in case the applicant appears, that he shall first file the appeal-bond required by law.”
Under this statute, William Varmest made the application therein contemplated, stating that he desired to construct two tile or under-ground drains through the lands of the plaintiff, describing them. The trustees fixed a day for the hearing, and the requisite notices were served, and they made and reduced their finding to writing as required by the statute. The trustees found that “one of said ditches is necessary for the proper cultivation of said lands; that the permanent value will be increased thereby; and that it is necessary, in order to drain said lands and adjacent lands, that said tile ditches should pass through the lands of others than the applicant herein.” The trustees also found and directed that the drain should be constructed over the land of the plaintiff, where the same should enter his premises, the depth and size of the drain, the length thereof, and that he would sustain no damages by reason thereof. Afterwards the plaintiff caused to be issued a certiorari directed to the defendants, who are the township trustees, and in their return thereto the foregoing facts appear. Afterwards the plaintiff appealed from the decision of the trustees to the proper court, so that both appeal and the certiorari proceedings were pending at the same time. No motion was filed to dismiss either, nor was the pendency of one pleaded in abatement or in bar of the other. In both such proceedings a motion was filed by the plaintiff to dismiss the same, because the statute above referred to was unconstitutional. and therefore the proceedings from the beginning must be regarded as absolutely void. These motions were sustained, and the defendants appeal.
1. It is said that the appeal must be regarded as a waiver or abandonment of the certiorari proceedings. For aught that appears, this question is presented for the first time in this court, and this cannot be done; but, conceding the point made to be well taken, the question as to the constitutionality of the law could be raised in the appeal in the manner it was in this case. Blankhead v. Brown, 25 Iowa, 540. Besides this, if the statute is unconstitutional, the whole proceeding is void, and no right whatever was or can be obtained thereunder, and the sooner this question is determined the better it will be for all parties.
2. No motion was made to dismiss the appeal; therefore, for all purposes of this case, it must be regarded as properly in the court below when the motion was determined. While this is true, it is exceedingly doubtful whether the right to appeal existed. It will be observed that the trustees found that the plaintiff was in no respect damaged by the construction of the drain over his premises, and the statute provides that the decision of the trustees shall be “final, except as to the amount of damages, if any, which shall be awarded.” This contemplates that an appeal lies only in case damages are awarded. If this be the proper construction of the statute, it is in conflict with section 9, art. 1, Const., which provides that the “right of trial by jury shall remain inviolate, * * *” and “no person shall be deprived of life, liberty, or property, without due process of law.” The assessment or non-assessment of damages by the trustees cannot be regarded as “due process of law,” unless the right of appeal exists to a tribunal where such an assessment can be made by a constitutional jury. But as the main reliance of counsel for the appellee is based upon another provision of the constitution, it is perhaps better that our decision should be grounded on it.
3. It is agreed on all hands that private property, or the use thereof, cannot be taken or appropriated for private purposes without the consent of the owner; but it may be taken without the consent of the owner for public purposes if such owner is compensated therefor. The contention of counsel is whether the statute contemplates or authorizes the construction of drains for a public purpose, or for the private use and benefit of the applicant. Counsel for the appellant have called our attention to many adjudged cases, in which it is claimed questions like that in the case at bar have been determined. These cases have all been examined, and they consist of two classes. The first is where the erection of dams across streams of water are authorized by statute for the purpose of creating water-power to propel machinery in mills and manufactories; the effect of such dams being almost invariably to cause the water to flow back and submerge the lands of others. Such statutes have been sustained on the ground of public necessity. They were first enacted prior to the discovery or utilization of steam, and there was no power other than that of animal or water that was known, or at least which in those days could be economically used, for the purpose of procuring food and clothing. The establishment of mills and manufactories, therefore, was a public necessity, as well as a private benefit to the parties who constructed them, and so are railroads, which are now regarded as public necessities. This being so, the power to invoke the right of eminent domain existed, and, if any person was damaged by the erection of such dams who refused to accept a reasonable compensation for the damage suffered, he could properly be compelled to do so in case his damages were assessed by a jury. But if such statutes were enacted now for the first time, it is possible if not probable such statutes could not be sustained. Cooley, Const. Lim. 664.
The second class of cases to which counsel have called our attention is where swamp or overflowed lands have been drained by ditches or otherwise reclaimed, and in so doing drains or ditches have been constructed, under the provisions of a statute, through the lands of others. These cases are not grounded on the right of eminent domain, but on the police power inherent in the state, which, broadly but not accurately (if this can be done) defined, is the power to do whatever may be regarded as being for the interest of all the people of the state. Such definition of the police power is sufficiently accurate for the purposes of the case. If lands are swamp, marsh, or wet, disease may be engendered, the public health may require that they should be drained, if necessary, and such drain may be constructed through the lands of others. Such a statute has been in force in this state for several years. Code, §§ 1217-1225, inclusive. It may be further conceded, for the purposes of this case, that if land is swamp, marsh, or wet, and the proper cultivation thereof so requires, it may be drained through the lands of others, provided compensation is made for the damages sustained. There are well-considered cases which hold that this may be constitutionally done when...
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