Littell v. Webster County
| Citation | 131 N.W. 691,152 Iowa 206 |
| Parties | F. A. LITTELL, Receiver, Appellant, v. WEBSTER COUNTY, IOWA, THE BOARD OF SUPERVISORS OF SAID COUNTY ET AL., Appellees |
| Decision Date | 09 June 1911 |
| Court | United States State Supreme Court of Iowa |
Appeal from Webster District Court.--HON. CHAS.E. ALBROOK, Judge.
ACTION of mandamus to compel defendant Reynolds to issue proper and legal certificates as to the completion of a drainage ditch for what was known as Drainage District No. 4 in Webster County; to compel defendant Hanrahan, as county auditor, to issue a warrant for the payment of the balance due on the contract for excavating the ditch; to compel defendant Hadley, as county treasurer, to pay the said warrant from the proper fund; and to compel the board of supervisors of Webster County to accept the report of the engineer Reynolds and to order the payment of the warrants; and further equitable relief was also asked conformable to the allegations of the petition. The Tecumseh National Bank of Tecumseh, Neb., intervened in the suit claiming a part of the funds in virtue of an assignment from Ward Bros., the original contractors for the ditch. Plaintiff averred that the ditch was dug according to the contract and specifications therefor, and finally completed some time before the bringing of this action. Defendants, in separate answers, denied the material averments of the petition denied that the ditch was dug according to the terms of the contract, or that it was ever finally completed. They alleged that the work was not done according to the specifications or the contract, and further pleaded that the work was negligently and unskillfully done. Upon these issues the case was tried to the court, resulting in a judgment dismissing both the petition and the petition of intervention, and plaintiff and intervener both appeal.
Affirmed.
J. M Graham, W. C. Elliott, and Healy & Healy, for appellant.
Samuel Davidson, for intervener.
Kelleher & O'Connor, M. J. Mitchell, and F. A. Grosenbaugh, for appellees.
The board of supervisors of Webster County having established and ordered the construction of a drainage district in said county known as District No. 4, on August 4, 1905, sent out notices to contractors for bids for the construction of the main ditch, drains, and laterals. Various bids were received pursuant to this notice which were opened on September 5, 1905, and the contract was awarded to Ward Bros. of Audubon County, Iowa the contract itself being signed on September 14, 1905. Ward Bros. undertook to complete the work under the contract, but some time before this action was commenced they became embarrassed financially, and on October 20, 1908, plaintiff herein was appointed receiver for them and as such brought this action. In order to avoid confusion we shall, during the course of the opinion, speak of the plaintiff as Ward Bros. unless a contrary thought is desired to be expressed; and when essential to differentiate the receiver from Ward Bros. we shall so indicate. Immediately upon the execution of the contract plaintiff commenced to construct dredge boats, and to procure their tools and equipment, and proceeded to excavate and dig the ditch and constantly proceeded with it save as delays were caused by unfavorable weather until the fall of the year 1908, when they claim to have completed the job.
In accordance with the terms of the contract the board of supervisors appointed a civil engineer to supervise the construction of the ditch and to issue to the contractors monthly estimates and certificates of the amount of work completed. These estimates and certificates were filed with the county auditor who issued warrants to the contractor upon the county treasurer for eighty percent of the contract price for the work thus completed and certified to. It was the duty of said engineer to see that the work was properly done according to the plans and specifications which were made a part of the contract, and to require the workmen to correct any defects or mistakes in the construction of the ditch. The first engineer appointed to supervise the construction of Ditch No. 4 was Mr. C. A. Snook, the engineer who had planned and surveyed this drainage district. Mr. Snook remained in charge until the first 38,500 feet of the main ditch had been completed during which time he issued six estimates and certificates of work done. He resigned, and in his report complained of the work theretofore done, and expressly said that on account of defects no part of the work had been accepted by him or the board. Mr. Charles Reynolds was appointed to succeed Mr. Snook, and he took immediate charge of the work, continuing as engineer in charge until the completion of the ditch.
The open ditch constructed with dredge machines in District No. 4 consists of a main line and seven laterals or branches which connect either with the main line or with one another. The combined length of the main ditch and laterals is about 34.34 miles. The amount of excavation was 795,051 cubic yards, and the area of the district was 28,000 acres. The country through which the ditch was constructed is low, level, and flat, covered in large part with sloughs, swamps, and peat bogs. The district is crossed by two lines of railroad. The Chicago & Great Western crosses the main ditch at about station 637. This is about 1,000 feet south of the beginning of the main ditch. The Illinois Central Railroad, passing through the southern part of the district, and crosses the main line at or near station 139. It also touches Lateral No. 4 at its source. The main line of the ditch begins in Newark township, extends in a southerly direction through Colfax township into Washington township, where it ends in Bruchy creek. It is 73,570 feet long or about fourteen miles in length. Lateral No. 1 begins in a swamp in the southern part of Newark township in section 35. It extends almost due east through three townships, then turns and runs in a southwesterly direction to the place where it joins the main line in the southern part of Colfax township some distance north of the Illinois Central track. It is 40,800 feet or about 7 3/4 miles in length. It flows into the main line from the east. It has two branches--that is, two other shorter laterals flowing into Lateral No. 1--No. 3, from the north, and No. 7, from the south. Lateral No. 3 is wholly within Colfax township, is 10,400 feet or about 1 3/4 miles in length. Lateral No. 7 is wholly within Colfax township, and it is 17,707 feet or about three miles in length. Another lateral, Lateral No. 4, flows into the main line of the ditch from the east. This lateral is wholly within Washington township. It begins in section 2 on the north line of Washington township and flows southwest, joining the main line of the ditch, 500 feet north of the lower end thereof. Three laterals flow into the main ditch from the west. These three are wholly within Colfax township. Lateral No. 5, the most northern, is 10,000 feet long. Lateral No. 6 is south of Lateral No. 5; it is about 8,000 feet in length. Lateral No. 2 is by far the longest of the three laterals on the west of the main ditch, being 20,540 feet in length. All of these laterals extend out through swamps and bogs. The entire line of the ditch, including both the main line and the laterals, was divided into stations of one hundred feet each, by the engineer in charge of the construction. This was done for the direction of the workmen who built the ditch. These stations were marked by stakes on which there were written directions to the workmen, stating the dimensions of the ditch.
Claiming that the ditch was completed according to contract, plaintiff, on September 14, 1908, demanded acceptance thereof by the county and the payment of the twenty percent reserve. The board of supervisors refused to take any action until they had the report of Reynolds, the engineer in charge. Reynolds was then requested to make a report which he did on the same day and filed the same with the county auditor. This report was not satisfactory to some members of the board, and Reynolds was directed to make another report. This he did and the second report was filed November 30, 1908. The board then refused to take any action regarding the acceptance or rejection of the work, and this action was commenced on December 31, 1908. There is not much dispute regarding the law of the case and the main contentions are over the facts. Plaintiffs claim that they substantially performed their contract according to the terms thereof and of the specifications which are made a part thereof. This is denied by defendants, and they point out the following defects in the brief filed for them:
(a) Failure to leave a clear berm of eight feet between the excavation and the spoil bank, and that the berm actually left was not six feet in width, but was in width very much less than six feet, and that the same was not a clear berm but that said berm was negligently and carelessly allowed and permitted to be and become obstructed with loose clods, lumps of earth, and other material; and that the contractors wholly failed to comply with said provisions of the contract.
(b) Failure to comply with the terms of the contract in the slope of the waste banks on the side next to the ditch, in that said waste banks were left at a slope much greater than '1 to 1.'
(c) That ditches constructed did not have full dimensions of cross-sections and berms, and were not free from rough or irregular bottoms, and did not have sides regular and free from overhanging sods and dirt; that said ditches had rough and irregular bottoms, and that earth and sods were allowed and permitted to overhang along the sides thereof; that the sides are irregular and rough, and that the bottom...
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Littell v. Webster Cnty.
... 152 Iowa 206 131 N.W. 691 LITTELL v. WEBSTER COUNTY ET AL. Supreme Court of Iowa. June 9, 1911. . Appeal from District Court, Webster County; Chas. E. Albrook, Judge. Action of mandamus to compel defendant Reynolds to issue proper and legal certificates as to the completion of a drainage ditch for what was known ......