Mayne v. Board of Sup'rs of Pottawattamie County

• Decision Date: 12 March 1929
• Docket Number: 39041
• Citation: 223 N.W. 904,208 Iowa 987
• Parties: J. H. MAYNE et al., Appellants, v. BOARD OF SUPERVISORS OF POTTAWATTAMIE COUNTY et al., Appellees
• Court: Iowa Supreme Court

223 N.W. 904

208 Iowa 987

J. H. MAYNE et al., Appellants, v. BOARD OF SUPERVISORS OF POTTAWATTAMIE COUNTY et al., Appellees

No. 39041

Supreme Court of Iowa, Des Moines

March 12, 1929

REHEARING DENIED SEPTEMBER 21, 1929.

SUPPLEMENTAL OPINION JUNE 24, 1929.

Appeal from Pottawattamie District Court.--O. D. WHEELER, Judge.

An appeal from the action of the district court confirming the action of the board of supervisors of Pottawattamie County in making certain assessments against the lands of the plaintiffs in Pigeon Creek Drainage District No. 2 in Pottawattamie County.--Reversed and remanded.

Reversed and remanded.

J. J Hess and George H. Mayne, for appellants.

John P Organ, for appellees.

ALBERT, C. J. STEVENS, DE GRAFF, MORLING, and WAGNER, JJ., concur.

OPINION

ALBERT, C. J.

The aforesaid Drainage District No. 2 was established in 1903, and the improvement therein was completed in 1907. Generally speaking, the lands lying in this district are bottom lands along the Missouri River, which, to a large extent, are low, flat, and swampy. Coming from the northeast into said district is what is known as Pigeon Creek. It traverses the district in a southwesterly direction, and empties into the Missouri River, which is, for at least a part of the way, the western and southern boundary of this drainage district. Traversing the district in a northerly and southerly direction is the Northwestern Railroad, and paralleling it, about a mile west, is the Illinois Central Railroad. These roads converge, after they pass about the center of the district, and approach each other very closely at or near the south line of the district. The aforesaid Pigeon Creek originally crossed the Northwestern Railroad property under a bridge about a mile and a quarter south of the north line of the district. It runs in a southwesterly and southerly direction between these two railroads, and crosses the Illinois Central about three miles south of the north line of the district. The flowage in this stream is from the northeast to the southwest.

The improvement constructed commences in Pigeon Creek at a point about a quarter of a mile northwest of the center of Section 13, and from there it conducts the water in Pigeon Creek in a southerly and southwesterly direction, crossing the Northwestern Railroad about a mile and a half south of the point where the original Pigeon Creek crossed it. At that time, after crossing the railroad fill, it made an abrupt angle to the south, paralleling the Northwestern Railroad, and continuing in a southerly direction across the Illinois Central, thence into the Missouri River.

After the completion of this improvement, the Northwestern Railroad filled its bridge where Pigeon Creek originally crossed it, and certain other bridges between that point and the place where the new improvement crosses, making a solid embankment, which protected the land lying west of said railroad from any overflow from Pigeon Creek. This new improvement, as originally constructed, was approximately 26 feet wide at the bottom and 46 feet at the top, with spill banks on either side, which acted as levees in time of high water. After the completion of the improvement, and in pursuance of law, the cost of said ditch was assessed to the various tracts of land in District No. 2.

In 1910, another drainage district was laid, immediately to the northeast of No. 2, known in the record as Drainage District No. 8, following Pigeon Creek Valley. The ditch in No. 8 emptied into the head of the formerly constructed ditch in District No. 2. The improvement in No. 8, when completed, was something over 11 miles in length. It straightened Pigeon Creek, which, owing to the sinuosity of streams, was much longer than the completed ditch.

While there is some dispute in the evidence, we think it may fairly be said that the ditch constructed in Drainage District No. 2 was sufficient to take care of the water in that district in ordinary seasons; but after the waters from the ditch in District No. 8 were thrown into it, the trouble began. It is fair to say that the ditch in No. 2 was not large enough to take care of the waters naturally coming into it plus the additional water concentrated into it by Drainage District No. 8. The result was that the ditch in No. 2 was at some places filled with silt and debris, the banks were eroded, and the ditch was widened at the head to a width of about 72 feet on top by the action of the water, the levees or spill banks were washed away at various places along the line of the improvement, and the lower lands were flooded. The matter seems to have been a source of constant trouble, and efforts were made at various times by the board to remedy it, much money was expended, trying to obtain relief, additional work was done and a second assessment was paid in Drainage District No. 2 for work done on the improvement; but the desired relief was not obtained.

After this second assessment, the board spent about $ 27,000, previous to July, 1924, and some $ 37,000 after that date, to relieve the situation. The ditch at some places was widened, and as a final solution of the problem, it was determined that the levees on either side of the ditch which helped to carry the water in seasons when the water was more than the ditch could carry, were moved back some distance on either side and reconstructed. The dirt for these new levees, under the evidence, seems to have been taken from the sides of the original ditch, thus widening the channel by the amount of dirt necessary to construct these levees.

In 1925, the board of supervisors ordered all of the land in District No. 2 to be reclassified, and proposed to and did levy the total amount against the various lands in that district, consisting of all of the money expended on the improvement after the second assessment and up to the time of this action by the board. Objections were filed and hearing was had on the assessment report by the commissioners, but they were confirmed by the board, and on appeal were confirmed by the district court; and it is from the latter action that this appeal is taken.

The most serious question in the case is that raised by the appellants: to wit, that Drainage District No. 8 should be charged with a part of the cost of these various pieces of work done on the ditch in Drainage District No. 2. The appellees answer this question by saying that it was never raised before the board of supervisors by way of objections, and that, because of failure so to raise the question, under the familiar rule in these matters, objection was waived. With this contention of the appellees' we cannot agree. We have repeatedly stated that, in proceedings of this kind, technicalities and exactness in pleadings and objections are not required. The only purpose in requiring these written objections to be filed is that the contentions of the objectors may be brought to the attention of the board in the first instance, so that the board may consider the same and pass thereon. The evidence in the case shows that, a short time before the date set for the hearing on this question of assessment, all of the landowners in District No. 2 joined in what they called "a petition" to the board of supervisors, calling attention to the situation, and asking that, in spreading the assessment, a part of the same should be charged to the land in Drainage District No. 8.

While of course, there is no provision in the statute for the filing of such a petition, we feel that this brought the...