Mittman v. Farmer

• Decision Date: 20 September 1913
• Citation: 162 Iowa 364,142 N.W. 991
• Parties: MITTMAN v. FARMER ET AL. STEIN v. FARMER ET AL.
• Court: Iowa Supreme Court

162 Iowa 364

142 N.W. 991

MITTMAN

v.FARMER ET AL.

STEIN

v.FARMER ET AL.

Supreme Court of Iowa.

Sept. 20, 1913.

Appeal from District Court, Muscatine County; L. J. Horan, Judge.

Plaintiffs, appellees here, appealed to the district court from an order of the boards of supervisors of Muscatine and Louisa counties establishing drainage district No. 13, including a pumping station and the maintenance thereof. The two appeals were tried together in the district court. There was a decree in favor of plaintiffs, and the order of the joint board establishing the district was annulled. Defendants appeal. Reversed.J. J. Seerley, of Burlington, and H. O. Weaver and W. H. Hurley, both of Wapello, for appellants.

J. F. Devitt, of Muscatine, C. A. Carpenter, of Columbus Junction, and Carskaddon & Pepper, of Muscatine, for appellees.

PRESTON, J.

The facts are substantially that on March 10, 1910, there was filed with the county auditors of the two counties a petition signed by 40 of the 174 landowners in the district, asking that the boards of supervisors establish a drainage district, which would include lands within both counties, and a pumping station. March 11, 1910, the boards met in joint session, appointed two commissioners as provided by law; the two commissioners appointed an engineer, and on August 13, 1910, a report was filed, recommending the establishment of a district, including a pumping station, and specifying the lands which should be included within the proposed district, and showing the estimated cost of the improvement and maintenance of the pumping station. This report shows the area of the watershed to be 53,480 acres, 29,440 acres in Muscatine county, and 24,040 in Louisa county.

The commission further found that the lands benefited would be 15,774 acres in Muscatine county and 14,208 acres in Louisa county, or a total of 29,982; that the acreage liable to be affected by the backwater in Muscatine slough during seasons of protracted high water in the Mississippi river, under present conditions, is approximately 5,539 acres in Muscatine county and 10,352 in Louisa county. Objections were filed by different landowners and at different times; some of these objections were filed before the board as early as April and May, 1910.

Evidence was offered and hearings had before the board, and the district was established October 25, 1911, as recommended by the engineer, and was named the Muscatine-Louisa county district No. 13. A time was fixed for filing claims for damages; but the record does not show how many or the amount of these, and it is stated there is no controversy as to them. Other proceedings were had and orders made which are not material now.

A contour line, three feet above high water, was used as a basis for the boundary line of that part of the district north of the Hoffman levee, and each 40-acre tract, any portion of which containing land lower than this three-foot contour, was included within the boundary of the district. At the south end the boundary was taken from the levee line to the high-water line at the bluffs. The established drainage district begins at the south limits of South Muscatine, then extends in a southerly direction, following the old bed of the Muscatine slough to its junction with the Mississippi river, then south to the mouth of the Iowa river. The entire length of the district is 26 miles. Originally Muscatine slough had an inlet from the Mississippi river at what is now South Muscatine. It runs in a southwesterly direction for some miles, thence south, thence southeast to Port Louisa, where it has an outlet into the river. Many years ago a levee was constructed along the west bank of the Mississippi to, or nearly to, Port Louisa. About 1894 the Hoffman levee was built from the south end of the old levee near Port Louisa west to the bluffs to protect the land from the overflow of the Mississippi.

The land between Muscatine slough and the river is called Muscatine Island. The island varies in width; it is about 4 1/2 miles wide at its widest part, near the town of Fruitland, narrowing to about a mile at its lower end.

The lands in the district will be benefited more or less, depending upon the elevation and location of the various tracts. The width of the district varies from 1 1/2 to 4 miles. The western boundary extends nearly to the Mississippi bluffs, which extend in a southern and southeasterly direction until they merge with the bluffs of the Iowa river. The eastern boundary of the district may be said to be the banks proper of the Mississippi river, except at the north portion, where, for a distance of 10 or 12 miles, the sand ridges or higher lands extend along the river banks. These higher lands just referred to are not included in the district. The soil along the bed of the Muscatine slough is a rich, black deposit, varying in extent and depth. The soil west of the slough is similar. The land in the southern part of the district is level. Some of the land in the district is made up of sandy ridges and slashes, the heavier soil being in the slashes, and extending towards the general outlet of the slough; this is particularly so as to some of the land around Fruitland, where the soil in places is thin and sandy. The swales are called slashes by the witnesses generally, though some of them refer to ponds as slashes. Before an effort was made to reclaim the lands, most of them in the district were, and those in the southern part are now, low, wet, and subject to overflow. All of the rich, black soil in the district needs complete drainage. Some of it is in some degree cultivated; but much of it is useless for want of reclamation.

The levees before mentioned have been of benefit to the landowners, but in times of high water do not afford adequate protection of the lands which they inclose. When the Mississippi river is high, the outlet pipes in the levees must be closed, and, there being no outlet for the water within the district, it rises to such an extent as to render a portion of the lands in the upper district unsuitable for cultivation. There is some conflict in the evidence as to how far north the backwater will reach. Some of the witnesses say it extends to the Muscatine city limits, others think not farther than to Vail's land, which is five or six miles north of the Hoffman levee. There are swales north of Vail's land, where the elevation is lower than at Vail's.

The extreme high-water mark of the Mississippi is something more than 18 feet; when a stage of 13 feet is reached, lands inside the levees are flooded. When the waters recede, lakes and ponds are left here and there over the district. The lower part of the district, south of Port Louisa, containing about 6,000 acres, is also reclaimed by the proposed improvement. Only a small part of this land can now be cultivated even in dry seasons. While but 40 of the individual landowners in the district have signed the petition for the improvement, about 75 per cent. of the acreage favor drainage.

When the tax for this improvement is finally levied, the lands of the parties who have filed this contest will, in all probability, bear but a small part of the burden, and only such an amount as their lands are benefited. The heavier burden will fall on the lands which cannot now be cultivated, and which will be more substantially benefited. A large district of very rich land, which is now almost useless, will be reclaimed. The improvement contemplates a pumping station at Port Louisa. It is not claimed by objectors that the pumping station is not feasible. The objections to the pumping station are that the cost of construction and maintenance will be burdensome, and that there were not a sufficient number of signers to the petition.

Several years ago drainage district No. 3 was organized. This district included lowland within the city limits of Muscatine, and extended in a southwesterly direction to the county line. The proposed district No. 13 includes so much of No. 3 as is south of and outside the city limits. It is not objected that the boards did not have authority to include a part of No. 3; but the objections are that the lowlands in South Muscatine will be benefited and should be included in 13, and that the lands in No. 3 outside the city are not benefited and should not be included. Numerous objections were filed before the board and in the district court, among them that the drainage law is unconstitutional; that the lands of the objectors were all inclosed by levees, and had been so inclosed more than 10 years; and that the landowners outside of this district should have no voice in determining the improvements to be made within the district, because the notice to landowners was only by publication, and because the board did not have before them, when they took action, the report of the commissioners and engineer, as required by law. As to the last, it appears that this report was before the board. The other points just referred to are not argued, doubtless because some, if not all, of them had been heretofore determined. The trial court found that the district would not be for the public benefit or utility, or conducive to the public health, convenience, or welfare; that the proposed improvement and the maintenance thereof is excessive and a greater burden than should be properly borne by the land alleged to be benefited thereby; that the joint boards did not have jurisdiction to order and establish a pumping plant in connection with said improvement, for the reason that the petition asking for said improvement was signed by less than the required number of owners of lands supposed to be benefited, and that, in establishing drainage district No. 13, the joint boards by their order included in said district a portion of district No. 3, and that such action of the boards was inequitable and unjust; that the said boards improperly excluded a part of said district No. 3 to avoid...