Temple v. Hamilton Cnty.

• Decision Date: 06 June 1907
• Citation: 134 Iowa 706,112 N.W. 174
• Parties: TEMPLE v. HAMILTON COUNTY.
• Court: Iowa Supreme Court

134 Iowa 706

112 N.W. 174

TEMPLE

v.HAMILTON COUNTY.

Supreme Court of Iowa.

June 6, 1907.

Appeal from District Court, Hamilton County; J. R. Whitaker, Judge.

Appeal from a judgment of the district court, reversing and setting aside an order made by the board of supervisors of Hamilton county for the establishment of a drainage district. Reversed.D. C. Chase, for appellant.

Wesley Martin and G. D. Thompson, for appellee.

WEAVER, C. J.

A petition having been presented for the establishment of the drainage district in question, the board of supervisors appointed an engineer to make the preliminary survey. This was done, and report thereof duly returned. Notice of the proposed action was duly given, and certain persons whose lands would be affected by such proceedings presented a remonstrance against the construction of the ditch. Upon the day named therefor the remonstrants appeared before the board with counsel, and contested the granting of the petition. At the conclusion of the hearing, it was decided by a majority vote of the board that the preliminary proceedings had been conducted as required by law, and that the petition was sufficient, and that the proposed ditch was a work of public utility. At a later meeting of the board consideration was had of the claims for damages which had been presented and awards made aggregating $203. A resolution was then adopted December 21, 1904, establishing the district and ordering the construction of the drain. Soon thereafter, and within the month of December, 1904, the appellee herein and several other persons owning land within the district appealed from said order. In January, after said appeal had been taken and the proceeding was pending in the district court and after the membership of the board had been changed in part, said board of supervisors, apparently without notice to the parties in interest, passed a resolution dismissing the attorney who had been employed to defend the proceedings on appeal, and directed the county attorney “to dismiss all proceedings which are now pending on appeal or may hereafter be pending in the matter of establishing said drainage district.” In the district court the appellee herein, who was one of the remonstrants, was upon some theory permitted to file a petition as in an action in equity, setting up a history of the establishment of the ditch, and praying that the order therefor by the board of supervisors be “reversed, annulled, set aside, and held for naught” as being illegal and void. The county attorney, acting under the resolution of the board above mentioned, appeared in the proceeding, and disclaimed for the county any interest whatever in the same. Thereafter George R. Strever, petitioner for the ditch and principal upon the board for costs, appeared and was permitted to intervene in support of the order, from which the appeal had been taken. On the trial of the appeal many witnesses were examined upon both sides describing the district, its course of natural drainage, its liability to overflow, and pertinent features, and upon the record thus made judgment was entered that there was no necessity for the ditch, that its expense would create a greater burden than should properly be borne by the lands in the district, and that the resolution adopted by the board of supervisors on December 21, 1904, “should be, and the same is hereby, canceled, repealed, reversed, and held for naught,” and that the costs be taxed to said Strever.

1. The appellee makes the point that the act of the board of supervisors in January, 1905, directing the county attorney “to dismiss all proceedings which are now pending on appeal or may hereafter be pending in the matter of the establishment of said drainage district,” had the effect to put an end to...