Haugen v. Humboldt-Kossuth Joint Drainage Dist. 2

• Decision Date: 09 December 1941
• Docket Number: 45312.
• Citation: 1 N.W.2d 242,231 Iowa 288
• Parties: HAUGEN v. HUMBOLDT-KOSSUTH JOINT DRAINAGE DIST. NO. 2 et al., and 39 other cases.
• Court: Iowa Supreme Court

1 N.W.2d 242

231 Iowa 288

HAUGEN v. HUMBOLDT-KOSSUTH JOINT DRAINAGE DIST. NO. 2 et al., and 39 other cases.

No. 45312.

Supreme Court of Iowa

December 9, 1941

[Copyrighted Material Omitted]

C. W. Garfield, of Humboldt, and Shumway &amp Kelly, of Algona, for appellants.

D M. Kellcher, of Fort Dodge, and E. H. Parsons, of Humboldt, for appellees.

Miller, Huebner & Miller, of Des Moines, amici curiae.

BLISS Justice.

A number of questions have been submitted to us for answer, and the respective contentions of the parties have been ably presented and discussed. Part of the work, consisting of cleaning out the siltage and obstructions in, and deepening and widening, the main ditch and two laterals emptying into it, was done under a written contract at so much a cubic yard, with a provision for per-hour compensation in the event that sand was found in large quantities. There were subsequent verbal agreements respecting the removal of sand which came into the ditches after they had been dredged, and respecting the leasing of the contractor's dredge, by the drainage district, to reclean the dirt and débris which had been washed into the main ditch by a heavy rain, at about the time of the completion of the work under the written contract.

The remainder of the work was largely done under an arrangement with those in charge of a CCC camp at Bancroft, Iowa, and the Bureau of Agricultural Engineering, an agency of the federal government, under which the labor and superintendence of the work were furnished by them, at no expense to the drainage district, and the materials for the work and its delivery were furnished by the drainage district and at its expense. This work, just referred to, was largely piecemeal and disconnected, and was done without contract, other than the CCC arrangement, except various separate, and largely verbal contracts for the purchase of material for construction work, and gasoline, oil, etc., used in the operation of the machinery. This latter work, insofar as it involved the issuance of warrants, consisted in greater part of the rebuilding of concrete bulkheads, installing inlets, catchbasins, metal pipe outlets to care for surface and flood waters, the cleaning out, repair of and relaying of tile outlets, and some new tile lines. The drainage district employed an engineer to do the customary engineering work, and to have the general superintendence and management of all of the work done. Except as to the excavation of the open drains, and we will refer later to the letting of this work, there was nothing in the nature of competitive bidding with respect to the purchase of material used in the work.

From the inception of the proposed improvement and throughout the work, the joint boards proceeded upon the theory that all of the work done was authorized by section 7556 of the Code of 1935, and that the statutory proceedings required in the establishment of an original joint drainage district, the letting of contracts, construction of the improvement, classification and assessment of the land in the district, had no application to the work which they were doing. Consequently, they required no petition for the work, no submission of any plan of the work, specifications, estimate of costs, etc., by an engineer. There was no advertising for bids for the letting of any contracts. No statutory commission was appointed to assess benefits. Other provisions of the drainage statutes were disregarded. They insist in this court that their procedure was proper.

The appellees, in their objections filed with the joint boards, and in their appeal to the district court, maintained, and on this appeal maintain, that the work done comes within the provisions of sections 7554 and 7555 of the 1935 Code, and that the same proceedings shall obtain as are provided for the original establishment of drainage districts. They further insist that in the event the Code sections, just referred to, do not apply, and the work done comes within the provisions of section 7556, nevertheless, since the expense incurred is in excess of 10 per cent. of the cost of the original improvement and the later extension of the main ditch, "and the nature and/or amount of work * * differs from mere repairs as defined in section 7561," the joint boards, as required by section 7559, should have ordered a new apportionment of, and assessment upon, the lands in the district, under the same rules and proceedings as provided by statute for an original establishment and assessment. The appellees, therefore, urgently contend that if the work was done under either section 7554, or under section 7556, the appellants failed to follow the statutory requirements, and the assessments made and levied are of no validity or force. The solution of the problem is not easy. With respect to the appellees' contention that the work constituted original or new construction and not repairs, the trial court made no express finding, and stated that it deemed no such finding a necessity, in view of its holding, in effect, that there had been no compliance with the provisions of section 7559. The trial court therefore rendered judgment and decree as to each plaintiff that the resolution of the joint boards of August 6, 1938, making the apportionment, assessment and levy against his land, was cancelled, annulled and set aside as void.

Matters of fact enter largely into the determination of the questions involved. The record is long and we will attempt to summarize the facts as concisely as an understandable presentation of the issues will permit.

Joint Drainage District No. 2 of the counties of Humboldt and Kossuth, containing 19,270 acres, was established January 3, 1907. The main drain, which was an open ditch, except for 1,000 feet of 16-inch tile at the upper end, was dug in 1908. The upper end of said line of tile begins on the north side of an east and west highway between Sections 8 and 17, in Garfield Township, the very southwest corner township of Kossuth County. The open main ditch, and what is called an "extension" of it, continues, from the lower end of said line of tile, south across Sections 17 and 20, and southeasterly across Sections 28, 29, 27, 34 and 35 in said township, and then across the north boundary line of Humboldt County into Section 2, Township 93, Range 29 in said county, and continues southeasterly across Sections 2 and 1 in said township, and Sections 7, 8, 9, 16, 15 and 23 in the township just east, and has its outlet in the latter section in a natural channel which leads to the west fork of the Des Moines river. The main ditch, including the string of 16-inch tile at the upper end, and the "extension," are 13.9 miles in length. In the construction of the main in 1908, station 0 (zero) was located at the upper end of the 16-inch tile, and stations were located and numbered consecutively down stream every 100 feet to station 573, which was the original outlet of the improvement. In the original construction, the open ditch work, consisting of the main, and open work in laterals "C" and "E," was let as one section. The preliminary engineer in his report gives the following specifications of this open work:

Line Length Grade Station Cu. Yds. Description

Main 11000' .06 10 to 120 33748 4' base, 1:1 slope, 6' berm.

Main 4000' .06 120 - 160 12050 8' base, 1:1 slope, 6' berm.

Main 6000' .07 160 - 220 29233 6' base, 1:1 slope, 6' berm.

Main 5500' .06 220 - 275 19349 8' base, 1:1 slope, 6' berm.

Main 12500' .06 275 - 400 48675 10' base, 1:1 slope, 6' berm.

Main 17300' .02 400 - 573 58123 12' base, 1:1 slope, 6' berm.

Lat. "C" 6900' .16 0 to 69 17997 4' base, 1:1 slope, 6' berm.

Lat. "E" 1500' .10 0 to 15 4241 4' base, 1:1 slope, 6' berm.

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Total Yardage, 223416

A grade of .06, as testified by one engineer, is a fall of 6 feet in a distance of 10,000 feet, and likewise a grade of .07 is a fall of 7 feet in the same distance.

It was discovered at or before the completion of the original improvement that the grade was too flat at the lower end for an adequate outlet. According to the original profile, the ditch at station 573 had only a 3.2 foot excavation, if it was dug according to the profile. Construction engineer Goodrich, filed a report June 28, 1909, recommending that the grade from station 400 to station 573, a distance of approximately three miles, be changed from a grade of .02 to a grade of .05, with the same base and side slope, which would require an increased excavation of 37,984.7 cubic yards, and that the original main ditch be extended from station 573 to station 723 plus 78, a distance of about three miles, and making an additional excavation of 72,237 cubic yards. The report was approved and the contract was let September 10, 1909, at 7.9 cents a cubic yard. The total assessment for the extension, of $12,508.40, which undoubtedly included damages for right of way, etc., and general, overhead expense, was all levied against land in Humboldt County, excepting the sum of $205.65, which was assessed upon Kossuth County land. The cost of the estimated yardage at the contract price would be $8,747.04.

Recognizing that surface waters, unless properly cared for, would greatly impair the usefulness of the system, engineer Goodrich, on August 2, 1912, reported that no provision had been made for the entrance of floodwater into the ditch, which would lead to serious damage in siltage, washing and caving of the banks. He recommended the installation of 132 floodwater inlets, with 7 combination bulkheads and spillways and 40 catchbasins at an estimated cost of $8,520. No favorable action was taken on this report.

The original open excavation was estimated to be considerably in excess of 300,000 cubic yards....