Kimball v. Board of Sup'rs of Polk County
| Citation | 180 N.W. 988,190 Iowa 783 |
| Decision Date | 15 January 1921 |
| Docket Number | 32582 |
| Parties | GEORGE W. KIMBALL, Appellant, v. BOARD OF SUPERVISORS OF POLK COUNTY et al., Appellees |
| Court | United States State Supreme Court of Iowa |
Appeal from Polk District Court.--LAWRENCE DEGRAFF, Judge.
APPEAL from the action of the board of supervisors in levying special assessments against the lands of the appellant for the cost of repairing a drainage ditch.--Affirmed in part reversed in part.
Affirmed in part; reversed in part.
H. L Bump, for appellant.
Don B Shaw and Oscar Strauss, for appellees.
DE GRAFF, J., took no part.
The drainage ditch in question was constructed largely for the purpose of carrying the overflow water from what is known as "Van Steuben's Creek" to an outlet in Saylor Creek. The headwaters of Van Steuben's Creek are in the higher lands adjacent to and lying above the so-called "Saylor bottoms," or lower lands adjacent to Saylor Creek. These waters flow on steep grades with high velocity, and bring a large amount of silt from the higher lands to the bottom lands. At the head of the Saylor ditch, the Van Steuben Creek comes out upon a broad, alluvial flat, and the silt brought down by the water of the creek is deposited largely at the upper end of the Saylor ditch.
The lands of the appellant, consisting of 80 acres, are traversed by the drainage ditch, which runs the full length thereof along the east side, about two or three rods from the east line. When this open ditch across the appellant's land was originally constructed, there was a berm left between the edge of the ditch and the waste banks created by the dirt removed from the ditch. These waste banks on appellant's land were, under the plans and specifications of construction, designated as "levees." The original plan for the construction of the ditch provided for the placing of these levees on either side of the ditch, to prevent the water, in times of high flood, from flowing upon the adjacent land.
It appears to have been the plan of the engineer that the ditch, as originally constructed, was of sufficient depth to accommodate the ordinary and usual flow of water, but that, in time of excessive flood and unusually high water, the ditch itself might fill up, and then the water would overflow the adjacent berms, and be confined within these "levees."
In course of time, the silt brought down from the adjacent higher lands became deposited in the ditch at and near the place where the higher lands rise abruptly from the bottom lands. The evidence shows that the ditch had gradually "silted up," the amount of this silting varying from nothing, at the lower end of the ditch, to between six and seven feet at the upper end. The head waters flow on steep grades with high velocity, and consequently carry the burden of silt with greater ease and capacity; but, where the grade changes, and the ditch comes upon the alluvial flat or bottom land, the grade flattens out, and the water has consequently a lesser velocity, and the silt borne by it is more readily deposited. This condition necessarily results in filling up the channel of the ditch, especially at the upper end.
In addition to this, the appellant had, to a large extent, removed and lowered the levees on either side of the ditch across his farm. The exact amount of the removal of these levees is not certain, but the appellant admits that he had worked the levees down until they were about half the original height, and had seeded them down.
Under these conditions, the high water overflowed the channel of the ditch, and entered upon the lands lying below those of the appellant. The exact cause of this overflow and the extent thereof are not very clear from the record. By some witnesses it is attributed, in a measure at least, to the removal of the levees by the appellant, while others claim that it was due to an obstruction in the ditch, caused by the construction of an interurban railroad.
Be that as it may, on May 12, 1915, a landowner filed a petition with the board of supervisors, stating that the upper part or north end of the ditch was filled up, and that the water ran over the banks and covered the surrounding territory, and asking that an engineer be appointed to make a thorough investigation and report in regard to the repair of the ditch. Thereupon, an engineer was appointed, who reported to the board of supervisors the conditions in respect to the ditch, and recommended that the same be repaired by clearing and grubbing out trees and brush in the ditch channel, by removal of the silt and all fences across the ditch, and by "the replacing of the levees torn down." He also reported an estimate of the cost of the proposed repairs.
Thereupon, the board of supervisors, by resolution, approved said report, and ordered that notice should be given of bids for the doing of said work. Proper notices were duly published, bids were received, a contract was let, and the work of repair was performed.
Thereafter, a schedule of assessments of benefits against the various landowners in said district was filed with said board of supervisors by the engineer, containing the names of the owners of each tract of land consisting of 40 acres or less, the proportionate rate of assessments, and the total assessment against each tract. No notice of the filing of this report and estimate of assessment was given to the appellant, or to any other landowner in the district.
Thereafter, the appellant appeared before the board of supervisors and filed his written objections to the assessment proposed to be levied against him, and by resolution the board of supervisors disallowed the objections so filed, and levied an assessment against the appellant in the sum of $ 200, as a general assessment for benefits received by reason of the repairs to said ditch, and an additional assessment of $ 770.68, as the "cost of rebuilding the levees" across the appellant's land.
The appellant appealed from this action of the board of supervisors to the district court of Polk County, Iowa, where said assessments were each confirmed by decree of the court; and the appeal herein is prosecuted from said decree.
I. From the foregoing it will be observed that there were two separate and distinct assessments levied against the appellant's land, for the cost of repairing and restoring the ditch to its original condition. Both of these assessments were levied by the board of supervisors at the same time, and without any notice to the appellant. One of these assessments was what is known as a "general assessment," being the amount which was assessed and levied against the appellant's lands "in the same proportion that the original expenses and cost of construction were levied and assessed." As we understand the record, when the appellant's lands were assessed originally for the establishment and construction of the ditch, they were classified as provided by Section 1989-a12, Code Supplement, 1913. This section provides that:
"This classification when finally established shall remain as a basis for all future assessments connected with the objects of said levee or drainage district, unless the board, for good cause, shall authorize a revision thereof."
Section 1989-a21 provides that: "The cost of such repairs or change shall be paid by the board from the drainage fund of said levee or drainage district, or by assessing and levying the cost of such change or repair upon the lands in the same proportion that the original expenses and cost of construction were levied and assessed."
The appellant does not complain that the board of supervisors, in assessing his lands to the amount of $ 200, did not proceed in accordance with the provisions of these statutes. The board assessed all of the lands within the district for these repairs, and assessed one 40 of the appellant's lands $ 120, and the other 40, $ 80, making a total of $ 200. Objection was made before the board of supervisors that this assessment was "unjust, unreasonable, and inequitable." It is urged in argument that the lands of the appellant got no benefit from this work of repair, that the ditch was not cleaned out through the entire length of appellant's land; and that it was not placed in its original condition on his property.
We have examined the record with care, and can find no evidence upon which the trial court would have been warranted in reducing this assessment against the appellant's land, or, if so, any evidence whatever as to the extent of the reduction which should have been made. Certainly it was not necessary, in order that an assessment should have been made against the appellant's lands, that the work of repair should have been done upon his land. Such an improvement is a community enterprise. Many lands located within the drainage district are taxed for the improvement, that are not traversed by the ditch.
We are satisfied from the record that the appellant's lands were substantially benefited by the cleaning and repairing of the ditch where it was obstructed, near the higher lands lying above his property. The removal of the silt in the channel of the ditch, thus permitting the free and continuous flow of water within the ditch, was of benefit to him, even though the silt was not deposited in that portion of the ditch which was located upon his land. The entire district received a benefit from the repairing and cleaning of the ditch, and no objection is made that the assessment was not levied as the statute provides.
We find nothing in the record upon which we would be justified in disturbing the decree of the lower court confirming this assessment of $ 200 against the land of the appellant; and,...
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