Griebel v. Board of supervisors of Clinton County

• Decision Date: 17 February 1925
• Docket Number: 35977
• Citation: 202 N.W. 379,200 Iowa 143
• Parties: H. C. GRIEBEL et al., Appellees, v. BOARD OF SUPERVISORS OF CLINTON COUNTY et al., Appellants
• Court: Iowa Supreme Court

202 N.W. 379

200 Iowa 143

H. C. GRIEBEL et al., Appellees, v. BOARD OF SUPERVISORS OF CLINTON COUNTY et al., Appellants

No. 35977

Supreme Court of Iowa, Des Moines

February 17, 1925

REHEARING DENIED JUNE 25, 1925.

Appeal from Clinton District Court.--D. V. JACKSON, Judge.

ACTION for writ of mandamus, which, after hearing, was granted by the lower court. Defendants appeal.

Reversed.

E. L Miller, for appellants.

L. F Sutton and W. T. Oakes, for appellees.

ALBERT, J. FAVILLE, C. J., and EVANS and ARTHUR, JJ., concur.

OPINION

ALBERT, J.

Drainage District No. 10, in Clinton County, was established on January 12, 1911. It is divided into various different lines, among which there is Line D, the same being a tile drain. On July 2, 1917, Griebel and others petitioned the board to have the drainage system cleaned out and the tile drain put in proper shape. The board of supervisors referred this application to one Anderson, a civil engineer, for report. He filed his report on the 13th day of October, 1919, and on the 29th day of October, the matter came before the board. Griebel filed the following petition:

"We, the undersigned, being the owners of lands affected by Line D of Drainage District No. 10, do hereby petition the board of supervisors to reconstruct said tile line by laying a new tile line parallel to and about fifteen feet from the said Line D, said line to be laid according to the plans and profiles on file with the county auditor of Clinton County, Iowa. We hereby waive notice of our appearance before the board of supervisors, and agree to the said reconstruction, and waive claim for any damages by reason of the reconstruction of the tile line."

On May 4, 1920, the following resolution was passed by the board:

"Whereas, Line D in Drainage District No. 10 is obstructed and tile out of place to such an extent that it cannot be repaired; and whereas the board of supervisors finds the expense of reconstructing said line is greater than the benefits and greater than the district should bear; now therefore, be it resolved that said D line be abandoned."

After this action by the board, the present case was commenced, praying for a peremptory order of mandamus, commanding the board to forthwith repair said Line D, and for such other and further relief as may be considered just and equitable by the court.

What is hereinafter said must, in some respects, be partially speculative, because we do not have before us any plat of the drainage district, and nothing showing the areas, acreage, or original cost thereof. The evidence, however, shows that this Lateral D is something like 4,200 feet in length, but that the same has become practically worthless as a drainage project, because a large part of it was laid through quicksand; the title have been dislodged in many places; and other parts of the same have been filled, so that that line fails to function in any way.

The engineer appointed by the board to make report thereon said that it was not feasible or practicable to repair the old line, it being too expensive and uncertain in results, in view of the fact that it had been attempted a number of times, and had been a failure. He recommended the construction of an entirely new line, running parallel to the original line, and about fifteen feet distant therefrom. He suggested that, if an attempt is to be made to repair the old line, it would have to be replaced with sewer pipe, cemented at the joints, and would require a series of manholes, which he estimated would cost from $ 10,000 to $ 12,000, but that a new line would cost approximately $ 8,000. There seems to be no showing that the proposed new line, if constructed, would be of any more efficacy than the old one was. Speaking of this matter, the engineer says:

"It would be laid at a less depth, thus decreasing the fall. The soil would be about the same as the soil here where the original line was laid. There would possibly be the same tendency to settle out of position and to become displaced as in the original line."

Under the drainage law of Iowa as it existed at the time these proceedings were had, the district was a unit, and was treated and dealt with by the law as a whole. There was no provision in the law which gave the board any power to abandon any portion of the district. Section 1989-a21, Supplement to the Code, 1913, among other things provides:

"It shall be the duty of the board to keep the same in repair, and for that purpose they may cause the same to be enlarged, re-opened, deepened, widened, straightened or lengthened for a better outlet, and they may change or enlarge the same or cause all or any part thereof to be converted into a closed drain when considered for the best interests of the public rights affected thereby."

Under this section, there is nothing to indicate a right of the board to abandon any part of such drainage district. It is further to be noted that there is no specific power given to the board to change the location of the drain; but in House File 185 of the Acts of the Extra Session of the Fortieth General Assembly (Section 7556, Code of 1924), power is given to the board to change the location for better service. Of course, this latter provision was not in effect at the time the matter was under consideration by the board. It is apparent, therefore, that the board, in making the order abandoning this Line D of said drainage district, exceeded its power. That being so, it amounts simply to a refusal of the board to relieve the situation about which complaint was made, as to the functioning of this branch of the drainage district.

Under the record in this case, the men who own land along Line D were, of course, assessed for the original construction of said drainage district. The evidence shows that some work has been done in the district since this matter was called to the attention of the board; and that their land has been assessed for the same, being a part of the drainage district; and that all assessments made in the district for improvements in the future will be assessed over the whole district, and these parties will be compelled to pay their proportionate share thereof. It would seem to be little less than a rank injustice to give them nothing for what they have paid, and subject their lands to all future assessments in said district to aid in the relief of the other lands in the district from water, and at the same time refuse these parties any relief.

The board of supervisors, acting in a capacity somewhat similar to that of a trustee in this matter, owes the same duty to these lands as they do to any other lands in the district and it is certainly apparent that a condition exists, calling on the board to give these lands along Line D relief in some way, instead of abandoning them, as was attempted. Boards of supervisors, like all other officers, cannot disregard the duties placed upon them by statute. For such disregarded duty, under the law as it now stands, when such disregard is willful, they are subject to removal from office. The question before us for determination, however, is rather a narrow one; and, as...