Thielen v. Bd. of Sup'rs of Wright Cnty.
| Decision Date | 22 January 1917 |
| Docket Number | No. 30591.,30591. |
| Citation | 179 Iowa 248,160 N.W. 915 |
| Parties | THIELEN ET AL. v. BOARD OF SUP'RS OF WRIGHT COUNTY ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Wright County; Chas. E. Albrook, Judge.
Appeals from the orders of the board of supervisors were taken to the district court. These appeals were consolidated, and on hearing the assessments on all but two 40-acre tracts were approved, and these reduced. The several landowners appeal. Modified and remanded.Sylvester Flynn, of Eagle Grove, for appellants Thielen.
Birdsall & Birdsall, of Clarion, for appellants Miller and Streever.
Peterson, McGrath & Archerd, of Eagle Grove, for appellees.
Drainage district No. 74, of Wright county, was established in 1913. It is about 4 1/2 miles long, less than 1 1/2 miles across at the widest part, and contains 2,531 acres. The drain is of tile, ranging from 16 to 30 inches in diameter, and is 23,160 feet long. The outlet is into White Fox creek, and tile is laid from there northwesterly through the N. 1/2 S. W. 1/4 and S. W. 1/4 N. W. 1/4 of section 23, the N. 1/2 of section 22, the W. 1/2 S. W. 1/4 of section 15, the N. 1/2 of section 16, S. W. 1/4 S. W. 1/4 of section 9, the S. E. 1/4 S. E. 1/4 of section 8, and northerly through the E. 1/2 of the N. E. 1/4 of section 8 to the north side of the highway along the section line. The total assessment was $34,900, and to the report of the commissioners first appointed, the engineer of which was Bates, to inspect and classify the lands and apportion the costs, expenses, costs of construction, fees, and damages assessed, the appellants interposed objections to the assessments recommended therein against their lands as excessive, inequitable, and unjust, and in excess of benefits conferred by the improvement. No direct benefit was received, save to the land of Streever, for the drain did not pass through the land of any other appellant, nor near enough thereto to drain the same except through laterals. The sole benefit derived therefrom was in being afforded better outlets than previously enjoyed. Of course, the establishment of the district determined that each of these tracts, in so far as included therein, was benefited by the improvement; and, as the total cost is to be apportioned according to benefits, our task is, by comparing the benefits to be conferred on the several tracts, to ascertain whether the assessments levied against the lands of appellants are higher than they should be when compared with those levied against other lands of the district.
The design in excavating drains, open or closed, is first to furnish an outlet available and sufficient for use in draining all the lands of the district. The owners of some of the lands may not connect therewith or tile their lands. The improvement affords them the opportunity so to do, however, and, as drainage will be beneficial thereto, the making of the improvement and the levy of apportioned assessments proceed upon the theory that all will avail themselves of the opportunity for efficient drainage. This is doubtless what Luick, one of the commissioners first appointed, meant when he said, “All the land is supposed to be tiled.” Only by so doing do all reap the benefits to be derived from the improvement. Whether tiling has been laid prior to the improvement, or this has been done subsequently, can make no difference unless the improvement directly drains the land previously tiled. And even then this ordinarily is not of much importance, for the public drain is then substituted as the outlet, and, where the land intersected thereby has not been drained, laterals, if constructed, necessarily connect with the public drain, taking the water thereto from the same area which would otherwise be cared for by it. The advantage in the way of drainage from having the improvement through any tract of land is likely to be overestimated rather than overlooked. Proximity thereto, however, always is an important consideration, that is, the distance from each tract of land by the course tiling must be laid to connect with the public drain, as is also the circumstance that the lateral must extend through the land of another. A system which would furnish the most available outlet at the line of each owner's land would go far toward equalizing benefits throughout the district as established, and doubtless such a system would be more frequently recommended by engineers, but for the design of keeping down the apparent probable expense of the enterprise, in order not to deter those interested from the undertaking.
None of the lands on which assessments are said to be excessive touch the improvement, and in every case connection therewith must be made through land of another. The important consideration, then, is the benefit of the outlet, such as is furnished thereby, as compared with that previously enjoyed for each particular tract. This is all that is meant by the statement in several cases that the fact that the land previously has been tiled when the district was established should be taken into consideration, for, if tiled, there must have been an outlet, and, if permanent and entirely efficient, no benefit could well be derived from a public drain, unless it should be from the drainage of lands dominant thereto, by carrying off the surface waters which otherwise would reach the servient estate. If, however, the outlet is not permanent, or is not as efficient as the public drain will be when completed, the land necessarily will be benefited. See Obe v. Board of Supervisors, 169 Iowa, 449, 151 N. W. 453;Harriman v. Board of Supervisors, 169 Iowa, 324, 151 N. W. 468;Rystad v. Drainage District, 157 Iowa, 85, 137 N. W. 1030;Lyon v. Board of Supervisors, 155 Iowa, 367, 136 N. W. 324.
As the benefits derived by appellants' lands must be compared with those to other tracts in the districts, and the several assessments levied, these latter may here be referred to. The commissioners selected the N. E. 1/4 S. E. 1/4 of section 8 as the tract most benefited, found 34 acres of it swamp and 5 acres wet, and classified it at 100 per cent. None of it was tillable. There was no available outlet for it prior to the construction of the public drain. It extended diagonally across from the southeast in a northwesterly direction at an average depth of about 8 feet. This 40 was assessed $804.19. The drain extended through the E. 1/2 N. E. 1/4 of section 8, which was about the same kind of land; the upper 40 acres being classified at 93 per cent. and assessed $728.72, and the lower 40 acres classified at 98 per cent. and assessed $799.11. The S. W. 1/4 S. W. 1/4 of section 9 was low, wet, and swampy, except 5 acres, marked high, with drain extending through it, and was classified at 90 per cent. and assessed $705.22. The lands south of section 8 appear not to have been as swampy, but somewhat of a slough, with bogs, and as the drain, following the lowest land, extended to the southeast, percentages and assessments decreased on the different tracts through which it passed. Upon the filing of objections the board of supervisors appointed a second commission composed of Meacham, an engineer of long experience, who had made the permanent survey for the improvement, and had supervised its construction, and two other eligible persons. They selected the same initial 40 acres, classifying it at 100 per cent., but recommended that the assessment against it be $1,950, and their report recommended that the lower lands through which the improvement extended be classified and assessed higher, and those at a distance from the improvement lower, than did the report of the commissioners first appointed, and whose report was adopted.
Reverting, now, to the several appeals, we may first consider--
II. Miller's Appeal.
The following are the descriptions of his land; the first column of figures being the assessments as recommended by the commissioners first appointed and levied by the board of supervisors, and the second column being those recommended by the second commission.
+--------------------------------------------------+
¦NE1/4 NW1/4 section 9, 32 acres ¦$ 362 92 ¦$128 70¦
+--------------------------------+---------+-------¦
¦SE1/4 NW1/4 section 9, 38 acres ¦391 79 ¦78 00 ¦
+--------------------------------+---------+-------¦
¦SW1/4 NE1/4 section 9, 7 acres ¦50 52 ¦ ¦
+--------------------------------+---------+-------¦
¦Total ¦$ 805 23 ¦$206 70¦
+--------------------------------+---------+-------¦
¦NE1/4 NW1/4 section 15, 27 acres¦$ 306 21 ¦$ 39 00¦
+--------------------------------+---------+-------¦
¦NW1/4 NW1/4 section 15, 35 acres¦469 11 ¦142 35 ¦
+--------------------------------+---------+-------¦
¦SW1/4 NW1/4 section 15, 39 acres¦603 15 ¦317 85 ¦
+--------------------------------+---------+-------¦
¦SE1/4 NW1/4 section 15, 40 acres¦536 13 ¦327 60 ¦
+--------------------------------+---------+-------¦
¦Total ¦$1,914 60¦$836 80¦
+--------------------------------------------------+
On hearing in the district court, the assessment against the S. W. 1/4 N. W. 1/4 of section 15 was reduced from $603.15 to $553.15, and that against S. E. 1/4 N. W. 1/4 from $536.13 to $486.13. According to Meacham the northeast 40 of the N. W. 1/4 of section 9 had a small pond or two where the crops had died out. In the southeast 40 there were two little wet spots, one a pond 5 or 6 rods across, near the southwest corner. Both 40's are tiled and cultivated through an outlet extending westerly through the W. 1/2 N. W. 1/4 of section 9 to the highway on which it emptied. The fall was nearly 4 feet. The main advantage of the public drain is that of being able through negotiation or condemnation to extend this tile through land of Lewis about 120 feet, so as to connect with the public drain. Meacham estimated the benefits to the northeast 40 at $128.70, and to the southeast 40 at $78,...
To continue reading
Request your trial
-
Thielen v. Board of Sup'rs of Wright County
...160 N.W. 915 179 Iowa 248 THEODORE M. THIELEN et al., Appellants, v. BOARD OF SUPERVISORS OF WRIGHT COUNTY et al., Appellees No. 30591Supreme Court of Iowa, Des MoinesJanuary 22, Appeal from Wright District Court.--CHAS. E. ALBROOK, Judge. APPEALS from the orders of the board of supervisors......