Goeppinger v. Boards of Sup'rs of SAC

• Decision Date: 08 April 1915
• Docket Number: No. 29500.,29500.
• Citation: 152 N.W. 58,172 Iowa 30
• Parties: GOEPPINGER ET AL. v. BOARDS OF SUP'RS OF SAC, BUENA VISTA, AND CALHOUN COUNTIES ET AL.
• Court: Iowa Supreme Court

172 Iowa 30

152 N.W. 58

GOEPPINGER ET AL.

v.BOARDS OF SUP'RS OF SAC, BUENA VISTA, AND CALHOUN COUNTIES ET AL.

No. 29500.

Supreme Court of Iowa.

April 8, 1915.

Appeal from District Court, Sac County; F. M. Powers, Judge.

The plaintiffs commenced an action in certiorari in the district court to review the proceedings of the boards of supervisors of Sac, Buena Vista, and Calhoun counties in the matter of a joint drainage district in refusing to consider a claim for damages made by appellants and in failing to appoint appraisers to appraise the same. A return was made to the writ, and the appellees filed a motion to annul the writ. The motion was sustained, and the plaintiffs appeal to this court. Affirmed.Whitaker & Snell and John A. Hull, all of Boone, for appellants.

John W. Jacobs, of Lake City, Guy E. Mack, of Storm Lake, and R. L. McCord, Jr., of Sac City, for appellees.

PRESTON, J.

1. Forty pages of the abstract are taken up with the printing of the petition and the return of the writ. In the return all proceedings had are set out. We cull from the record that appellants are the owners of a half section of land in Sac county. Appellees are the boards of supervisors, the several members thereof, the county auditors of the counties before named, and the drainage district concerning which the proceedings taken by them are complained of. A petition dated April 14, 1908, in due form with proper bond, was filed in the offices of the county auditors of Sac, Buena Vista, Calhoun, and Pocahontas counties by Ira Conger et al., in which the establishment of a joint drainage district was asked. The petition states that this drain would cross the west side of the southwest quarter of section 12, owned by appellants; that the drain would follow as near as practicable the natural water course now running across said sections. A plat was attached to and made part of the petition. Thereafter, in due time, the boards of supervisors of said counties each appointed a commissioner, and the commissioners selected an engineer and proceeded to the performance of their duties. They made a full report, which shows the starting point, route, terminus of the improvement through each tract of land and the elevation. The report of the commissioners and engineer recites:

“That the petition for this improvement included some land in Pocahontas county, but, after having carefully examined this land, we find that a joint drainage improvement between Pocahontas and Calhoun counties has been constructed, outletting into section 7, Calhoun county. This outlet is nearly two miles from the Pocahontas county line and has sufficient fall to provide an outlet for all the affected land in Pocahontas county included in this district. Therefore we have been forced to conclude that the land in Pocahontas county included in this petition will not receive any benefit from the construction of this drain, and therefore could not be included within the proposed district.”

This report was filed in the office of the county auditor of Buena Vista county on the 30th day of September, 1910, and in the offices of the auditors of Sac, Calhoun, and Pocahontas counties on the 4th day of October, 1910. Because no land in Pocahontas county is affected or included in the district, that county does not appear in the further proceedings. Thereafter the auditors of Sac, Calhoun, and Buena Vista counties published notices in a newspaper in each county, and these notices were directed to a number of parties by name, among them the plaintiffs, and whose names were shown in the return in the list of owners of real estate, as shown by the transfer books in the auditor's office. Notice was also directed to unknown claimants and “to all whom it may concern,” and refers to the petition of Ira Conger et al., and states the filing of his petition, praying that a ditch be constructed, describing the course of the ditch. The notice contained the usual recitals of the appointment of the commissioners and the selection of the engineer, and states that on the 30th day of September, 1910, the return had been filed. This was the date when the return was filed in the office of the auditor of Buena Vista county, and the notice was published after the 4th day of October, 1910, when the return was on file in the offices of the auditors of all the counties. The notice also describes all the lands affected by this drainage district, and refers to the return of the commissioners and the fact that they recommend the construction of one main and 24 laterals. The notice also describes appellants' land and states to the owners and to all whom it may concern:

“You are notified that the boards of supervisors of Buena Vista, Sac, and Calhoun counties will meet in joint session at the office of the auditor of Sac county, Iowa, on December 8, 1910, at 9 o'clock a. m., and that all objections must be filed in either auditor's office not later than the time of meeting, and that all claims for damages must be filed in one of said auditors' offices not less than five days before the 8th day of December, 1910, or said district would be located and established without reference thereto.”

Parties were referred to the plat, profile, and report of the commissioners for particulars. Publication was made in a newspaper of general circulation in each county for two weeks, giving the statutory length of time intervening, prior to the meeting. At the meeting thus held on December 8, 1910, John L. Goeppinger appeared for the appellants, but filed no claim and made no objections, and, claims having been filed by other parties, the boards passed the usual preliminary resolution and appointed appraisers to appraise damages of the parties presenting claims. The plaintiffs not having filed a claim within the five-day limit, the appraisers were not directed to appraise their damages.

The boards, pursuant to adjournment, met on the 1st day of February, 1911, and at this meeting the plaintiffs appeared by John L. Goeppinger, their agent, and J. J. Snell, their attorney, and filed a claim for damages, and also filed objections. Their objections were, in substance: That no notice had been given; that said drain was to be constructed out of the natural water course; that any notice given was insufficient to appropriate their property; and that such appropriation was without due process of law. Thereupon, and on said date, the boards passed a final resolution establishing the district. On February 17, 1911, appellants gave notice of appeal to the district court of Sac county, Iowa, and filed an appeal bond in the sum of $500. The notice recites that they have appealed from the action of the joint boards of supervisors of Sac, Buena Vista, and Calhoun counties, Iowa, had on the 1st day of February,1911, whereby a county drainage district and a county drain affecting two or more counties was established by said boards over and across the land of plaintiffs, and that the appeal was taken to the March term of said court, to be begun March 6, 1911, at which time said appeal will be tried in the district court as an ordinary proceeding, as provided by statute. The notice of appeal and the appeal bond were filed and approved.

On May 10, 1911, this appeal came on before the district court for trial, and the plaintiffs dismissed it at their costs. No reasons therefor were given. The record simply recites that plaintiffs dismiss the appeal at their costs.

It is stated in argument, and the petition alleges, that plaintiffs are not residents of any of these counties, but we do not find that the return shows that fact. It is also alleged in the petition that plaintiffs' property was occupied by tenants, but their names are not given, and there is no showing as to whether such is the fact, or that the property is occupied by any one. In the view we take of the matter, this is not very material, because notice was given to plaintiffs, as owners, in the manner provided by statute, and we think plaintiffs may not complain, in a case of this kind, that the occupants of plaintiffs' land, if there were any, were not notified by name, or in any manner different from that stated in the notice to plaintiffs and other property owners by name and to all whom it may concern.

The motion to annul was upon the following grounds:

(1) That the defendants in the establishment of the drainage district and in all matters and procedure, relating thereto, have acted in conformity to law, and the statutes relating to the location, establishment, and construction of the drainage improvement in said district.

(2) That the drainage proceedings were in accordance with law in the establishment and construction of the drainage improvement, and defendants had jurisdiction at all times thereof, and of all matters pertaining thereto.

(3) That the action of the boards of supervisors of Sac, Buena Vista, and Calhoun counties, in refusing to consider the proported claim for damages of the petitioners and in refusing to appoint appraisers to appraise the same, was legal, and that the boards acted within their jurisdiction.

(4) That, by the failure of the petitioners to file their claim for damages in the time provided by the statute, the said petitioners waived all right thereto.

(5) That the record in this cause shows that the petitioners appealed to the district court of the state of Iowa, in and for Sac county, from the action of the boards of supervisors in refusing to consider their claim for damages and in refusing to appoint appraisers to appraise the same and from the order establishing said district, and thereafter dismissed the same, and said petitioners thereby waived any and all right of damages and are estopped from prosecuting this action.

(6) That the record shows that, after the filing of the proported claim for damages, the petitioners appealed from the action of the said boards of supervisors of Sac, Buena Vista, and Calhoun counties to ...