Monaghan v. Vanatta

• Decision Date: 02 October 1909
• Citation: 122 N.W. 610,144 Iowa 119
• Parties: MONAGHAN ET AL. v. VANATTA ET AL.
• Court: Iowa Supreme Court

144 Iowa 119

122 N.W. 610

MONAGHAN ET AL.

v.VANATTA ET AL.

Supreme Court of Iowa.

Oct. 2, 1909.

Appeal from District Court, Fremont County; N. W. Macy, Judge.

Action to enjoin the assessment and collection of a part of the alleged cost of excavating certain ditches. The contractors in a cross-petition prayed that their claim for unpaid balances be established, that the auditor issue warrants therefor, and the board of supervisors be ordered to make an additional assessment of lands included in the drainage district, out of the proceeds of which to pay the same. There was a decree awarding the plaintiffs the relief prayed as to any compensation for which warrants had not been issued and holding contractors entitled to payment of the outstanding warrants. From this decree both parties appeal; that of plaintiffs being first perfected. Modified and affirmed.W. E. Mitchell, for appellant.

T. S. Stevens and Geo. E. Draper, for appellees.

William Eaton and W. H. Norcutt, for county officials.

LADD, J.

A bayou 3.8 miles long curved to the southeast, and then back to the southwest, flowing through a narrow channel into the Missouri river. This channel was crossed by a wagon bridge 600 feet from the river and the bayou by the railroad bridge about a mile further north. Into the north end of the bayou emptied an old county ditch, which extended to the north 7,400 feet, and beyond it was “Mule” slough. By appropriate proceedings the board of supervisors of Fremont county established a drainage district and ordered the construction of a bulkhead across the channel, with flood gates, to prevent the water backing from the river into the bayou, the widening of the channel to the width of 18 feet for a distance of about 1,000 feet from the river, the excavation of a ditch 6 feet wide and 2 1/2 feet deep for a distance of about 1,300 feet long, through a bench of land north of the railroad bridge and across an arm of the bayou, extending east and north, and which held the water back when medium or low. It also directed that the county ditch be widened to 20 feet and deepened from 1 to 3 feet, and that a ditch be excavated through Mule slough varying in width from 20 to 4 feet. This order was in pursuance of a report of the engineer, appointed by the board of supervisors, filed with the county auditor and accompanied with plat and profile of the proposed improvements, together with estimates of their probable cost. There were several laterals concerning which there is no controversy. The work was completed in 1907, and the disparity between the preliminary estimates of the engineer and his final report of the actual cost was such as to lead to the investigation involved in this action. On the part of plaintiff it is contended that the main ditch extending from the north end of the bayou was excavated deeper and wider than the specifications called for, and that no charge should be made for the excess, and that much of the work in the bayou was not included in the contract, and that, if directed or approved by the engineer, this was the result of collusion and fraud between him and the contractors. In response to these charges the contractors assert that, even though the main ditch may have been excavated wider and deeper than indicated in the specifications, the engineer rejected any excess over that called for in making the measurements, so that the main ditch cost no more according to the final report than it would have had it been no wider and the bottom no lower than the line estimated in their preliminary survey. They further assert that the preliminary report was uncertain and indefinite as to the amount of excavation in the bayou, and that they performed the work under the direction of the engineer, and should be compensated therefor.

1. The dispute as to the main ditch first may be disposed of. In the final report the engineer certified that about one-third more earth was removed than had been estimated in the preliminary report on which the board of supervisors acted in ordering the improvement. This is a large discrepancy, and indicates either that the work of the preliminary survey was not performed as carefully as it should have been, or that the final report is incorrect. It appears that the elevations were taken at points 1,000 feet apart in making the preliminary survey, and, of course, those of the ground intervening were merely inferred. The preliminary report was but of estimates, while that finally made was, if properly prepared, a statement of accurate measurements of what had been done. Some differences between the two were to be anticipated, and that these are large will not alone justify the inference that there was fraudulent collusion between the engineer and contractors. If the number of cubic yards reported as excavated in the engineer's final report was actually removed, and in measuring the same he included therein nothing below the grade line established in the preliminary report as the bottom of the ditch nor any of the excess in width, then the plaintiffs are not entitled to relief. In the practical work of excavating ditches the depth and width often vary, and all that is required is that the ditch be constructed in substantial conformity with the specifications. The complaint here is not that the work was improperly done, but that the contractors have been allowed by the engineer for excavating deeper or wider than was contemplated by the original report and profile. The engineer testified that in the final report nothing of the excavation below the grade line established by the preliminary survey nor of any excess in width was included. The evidence was undisputed, and therefore we necessarily reach the conclusion that the plaintiffs are not entitled to relief with respect to any work done on the main ditch.

2. The following extract from the report of the engineer clearly indicates the work which was to be done in the bayou: “The outlet from the bayou is a small channel under the above-mentioned highway bridge. During the time of high water in the river the water is held back in the bayou; in fact, the bayou fills up with backwater from the river. The water level in the bayou will vary several feet according to the stage of the river. The backwater from the river can be kept out of the bayou by a bulkhead across the channel fitted with gates, which, when closed, will close the channel and when open will allow the water to drain from the bayou, the bottom of the gates to be set so as to lower the water in the bayou from elevation of 101.35, its present stage, at elevation 99.00. A design for a bulkhead with an estimate of cost accompanies this report. To put in the bulkhead will necessitate the removal of the highway bridge and replace that with an embankment, and build a 20-foot bridge across the channel leading to the bulkhead. This channel should be 18 feet wide and about 1,000 feet long. It is 19,083 feet or 3.8 miles from the mouth of the bayou to its northern end, where the county ditch empties into it. It has a fall of 4.6 feet in the distance. From the river to the crossing under the C. B. & Q. bridge No. 5, a distance of 1 mile, the channel is several hundred feet wide. From the railroad bridge an arm of the bayou...