Prichard v. Board of Sup'rs of Woodbury County
| Decision Date | 09 February 1911 |
| Citation | 129 N.W. 970,150 Iowa 565 |
| Parties | JOHN A. PRICHARD ET AL., Appellants, v. THE BOARD OF SUPERVISORS OF WOODBURY COUNTY and WOLF CREEK DRAINAGE DISTRICT, Appellees, THE BOARD OF SUPERVISORS OF MONONA COUNTY ET AL., Intervenors, Appellants |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. DAVID MOULD, Judge.
THIS is an appeal from a judgment of the district court affirming and confirming the action of the board of supervisors of Woodbury County in establishing what is known as the "Wolf Creek Drainage District" in said county. There was an intervention in the district court, and the petition of the interveners was dismissed. The objectors to the establishment of the drainage district and the interveners appeal.
Affirmed.
J. S Lothrop and J. A. Prichard, for appellants.
W. G Sears and Henderson & Fribourg, for appellees.
The board of supervisors of Woodbury County, upon a petition signed by various landowners, established what is known as the "Wolf Creek Drainage District" in said county. This was after a survey and plan had been made by a competent engineer and over the objection of certain landowners. Some of these objectors appealed to the district court, and, when the case reached that court, the county of Monona, the board of supervisors thereof, and various landowners filed a petition of intervention, in which they asked that the entire proceedings be dismissed, that the order of the board of supervisors of Woodbury County be set aside and annulled, and that the said board be enjoined from establishing the drainage district and from using a drainage ditch theretofore constructed by the joint action of the proper authorities of the counties of Monona and Woodbury. This petition was answered by the defendant named in the caption and by certain of the original petitioners for the ditch, as we understand it. Thereafter the interveners and the objectors to the establishment of the drainage district filed a supplemental petition, in which they asked practically the same relief as in the original petition of intervention. They also filed some additional objections to the establishment of the district not made before the board of supervisors of Woodbury County. The case came on for hearing upon these pleadings and upon the objections filed before the board of supervisors to the establishment of the drainage district, resulting in a dismissal of the appeals and of the petitions of intervention and the confirmation of the drainage district as established by the board. Costs were taxed against the appellants and interveners.
Although counsel have given all the aid possible, we find it very difficult to arrive at a satisfactory conclusion as to the facts. The record contains many photographs, several plats, and many land descriptions, and the witnesses in the lower court, in referring to these, did not indicate the places and matters referred to in such a way as that they can now be understood when their testimony is reduced to the printed page. It is often impossible to tell what the witness referred to, and without the presence of these witnesses we are often left to surmise and conjecture. The photographs were so marked that we have many times had to guess as to which ones were being referred to. The exhibit marks have been confused, or the witnesses did not correctly identify them. Because of the condition of the record, we have had to go over it many times in order to discover the salient and controlling points, and, if any have been overlooked, it has been due to the fact that much of the testimony taken upon the trial in the lower court can not be reproduced upon the printed page.
It appears that, some years before these proceedings were begun, the boards of supervisors of Monona and Woodbury Counties had, by joint action, established a drainage district composed of lands in the two counties, and pursuant thereto a ditch was dug running through the district, known in this record as the Woodbury and Monona ditch. The north, or upper, end of the ditch is in section 15 of a certain township in Woodbury County, which is included in the district now in controversy, and this with what is known as the Skinner ditch in Woodbury County, which ditch started from the same point as the Woodbury-Monona ditch, were so constructed and designed as to carry the water of Wolf Creek from the point of conjunction of the two ditches either by way of the Skinner ditch southwesterly into what is known as "West Fork Creek," or southerly by the Woodbury-Monona ditch, several miles through Woodbury and Monona Counties, to what is known as the "West Fork River." Each of these ditches was intended to carry its share of the water from Wolf Creek. Prior to the establishment of the Woodbury-Monona district, Wolf Creek lost its channel near the point where the Skinner and Woodbury-Monona ditches join, and spread out over the bottom land, flowing in no well-defined course, but rendering the land in the bottom swampy, wet, unhealthy, and unfit for cultivation. After the establishment of the Woodbury-Monona ditch, much of the land, up as far as the ditch was constructed, was reclaimed or partially reclaimed, although many times a year, particularly in wet seasons, Wolf Creek would overflow for many miles north of the junction of the two ditches, and the overflow water would come down upon the land in the eastern part of the Woodbury-Monona district, covering it to the depth of many inches and rendering it unfit in many places for cultivation. This Woodbury-Monona district was established, as we understand it, in the year 1899.
Wolf Creek, of which we have spoken, runs off into the hills and bluffs which border what is known as the "Missouri bottom," and is subject to overflow. Its general course is southwesterly, although its channel is very tortuous. At a point in section 14 of the land within the proposed drainage district, it turns abruptly from practically a north and south line directly westward, making a sharp angle on what is known as the "Ed Steinhoff land." This is near the point where it emerges from the bluffs, and from that point down to the Woodbury-Monona ditch its channel becomes less and less perceptible. Its usual wont was to spread out over the bottom following no well-defined channel. Because of its tendency to spread out over the bottom as it emerged from the bluffs, the Woodbury-Monona ditch did not take all the water which came down, but it often spread over the lands to the south and east of section 14, inundating lands not only in this section, but also in sections 23 and 26. At times it also spread over lands in sections 15, 22, and 27. Wolf Creek frequently overflowed its banks from a point where the east and west forks thereof join in section 30 in a township next north of the one which we have been considering, down to where it came out upon the Missouri bottom. Its length is something like six miles from the forks above described, and the valley through which it runs is from three-fourths to one mile in width.
In the fall of the year 1907, some seventeen owners of property within a proposed drainage district petitioned the board of supervisors of Woodbury County for the establishment of what has since been called the Wolf Creek district. The district commenced at the forks of Wolf Creek and ran south to the south lines of sections 26 and 27, being two and one-half miles south of the north line of the old Woodbury-Monona district. It comprised something like five thousand, nine hundred and sixty acres of land and embraced something like three thousand, three hundred acres which were already in the Woodbury-Monona district.
One Holmvig, the county surveyor of Woodbury County, was appointed by the board of supervisors to make a survey, etc., of the proposed district, and with necessary assistants he performed this service, making a proper plat showing the boundaries of the district, the main ditch, laterals, etc., and also a report showing the elevations of the land, the depth and size of the ditches, how they would drain the land, and also a profile of the ditch showing the elevations for every one hundred feet. No objections were filed before the board to the plat, survey, or profiles. The main ditch recommended by the surveyor commenced at the junction of the east and west forks of Wolf Creek and ran thence in a southwesterly direction through sections 30, 31, and 36 of one township and 1, 2, 11, 14, and 23 of the one lying south thereof, and emptied into the Woodbury-Monona ditch between sections 22 and 23 of the southernmost township of the county, something like three-fourths of a mile from the upper end of the Woodbury-Monona ditch. Several laterals running into this main ditch were outlined and proposed by the surveyors; six of them coming in from the east and south, and one from the north and west. The main ditch is nearly straight, and it was proposed by the surveyor to convey all the water which had theretofore been carried by Wolf Creek into this ditch. Wolf Creek, as already suggested, is very crooked, and in its natural condition did not convey flood waters with any speed on account of the sinuosity of the stream and the silt, underbrush, and growths therein.
From a point nearly three-quarters of a mile north of where the creek makes an angle on the Steinhoff land to a point nearly a mile south of the old creek channel, the proposed ditch runs in a straight line almost due north and south. The surveyor recommended the establishment of a district outlined by him, and the following is a part of his report: "The area embraced in the proposed district is subject to overflow, and can not be successfully cultivated, is unhealthy and unfit for...
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