Thompson v. Joint Drainage Dist. No. 3-11, Kossuth and Winnebago Counties
| Decision Date | 14 June 1966 |
| Docket Number | No. 52008,52008 |
| Citation | 259 Iowa 462,143 N.W.2d 326 |
| Parties | Theodore E. THOMPSON et al., Appellees, v. JOINT DRAINAGE DISTRICT NO. 3--11, KOSSUTH AND WINNEBAGO COUNTIES, Iowa, et al., Appellants. |
| Court | Iowa Supreme Court |
Weible & Stipp and R. C. Brown, Forest City, and Gordon L. Winkel, Algona, for appellants.
Fitzgibbons & Fitzgibbons, Estherville, for appellees.
This is an action to cancel levy of assessments for work done on a portion of a drainage district and to enjoin the collection thereof. From judgment in favor of the plaintiffs enjoining the collection of the levy and assessments, defendants appeal.
The Winnebago-Kossuth Joint Drainage District No. 3-11 is located partly in each of the two named counties and services many thousands of acres of land. The district, organized in about 1905, presently includes 11 named and numbered laterals and numerous numbered drainage districts all extending from the main ditch which services the entire district. We are particularly concerned with lateral 8 and also with Drainage District No. 22 () which flows into the upper bend of lateral 8, all entirely within Winnebago County. Plaintiffs are landowners in lateral 8.
The original cost of Joint District No. 3--11 was $101,561. of which sum the amount of $97,753. was apportioned to Winnebago County District No. 3. In the years 1947 and 1948, extensive improvements were made in the district. All lands in the joint district were reclassified in 1949. Total cost of these improvements to the entire joint drainage district was $175,545. The total cost of the improvements to lateral 8 and DD$22, excluding the cost of the main ditch was as follows:
For purposes of this opinion the term subdistrict and drainage district will be treated as synonymous. When referring to the entire district the term joint drainage district is used.
In September 1960, proceedings were commenced to make repairs or improvements or both in lateral 8 and in DD$22. These proceedings culminated in the extensive work in the upper end of lateral 8 and in DD$22. The nature of the work is not disclosed by the evidence other than lateral 8 was cleaned out and deepened as its upper end and additional tile added, some of which extended into DD$22. There is no indication whether the work constituted a repair or an improvement or a combination thereof. However, both counsel have proceeded on the theory that this is immaterial because of the percentage and amounts involved.
The work on lateral 8 and DD$22 was completed in 1962, and on December 31, 1963, assessments were levied as follows:
Hearing was not held on the matter of making such repairs or improvements and notices provided in § 455.20 to § 455.24, Code, 1962, were not given to the plaintiffs.
Plaintiffs contend that they were entitled to notice and that notice not having been given, the assessments levied against their lands for repairs and improvements are void.
If the percentage limitations are to be applied to the Entire district, plaintiffs must fail. If they are to be applied to the Lateral and drainage district affected (the property owners of which will pay the whole bill through assessments), plaintiffs must prevail. Plaintiffs raise other matters which will be noted only incidentally as this case turns on the foregoing contention.
I. Section 455.135, Code, 1962, reads in part as follows:
'Provided, however, if the estimated cost of repair exceeds fifty percent of the original total cost of the district and subsequent improvements therein as defined in this section, the board shall set a date for a hearing on the matter of making such repairs, and shall give notice as provided in sections 455.20 to 455.24, inclusive.'
Section 455.135(4) provides further as follows:
Section 455.48 provides that the assessment of benefits and apportionment of costs of constructing lateral ditches in the first instance are on the same basis as if each lateral was constructed as a subdistrict, and there must be reported separately the percentage of benefits and the amount accruing to each forty acre tract or less on account of the construction of such lateral improvement.
Defendants' position would allow the board of supervisors to cause Repairs to be made in a single subdistrict or a single lateral to the amount of at least $138,553. (1/2 the original cost plus 1/2 the cost of improvement of the entire joint drainage district). This position would allow the board to cause Improvements to be made in a subdistrict or a lateral to the amount of at least $69,276. (1/4 the original cost plus improvements of the entire joint drainage district); all without hearing or notice. Assessments to these amounts are said to be legal even though the entire amounts would be levied against property which in this case bore a provable cost of initial construction and improvements of only $29,500.
We should note at this point that the defendants state the they are unable to prove the share of the initial cost which is allocable to lateral 8 and DD$22 for the reason that no such allocation was made (or preserved) in 1904 when the original work was performed. In this case at least, it does not appear that the added basis would affect the result. In any event the individual property owner can not be penalized for the district's failure to keep records. This allocation is unnecessary under defendants' theory but is a limiting factor under plaintiffs' theory. We speak hereafter of provable original cost and provable cost of improvements.
Plaintiffs contend that repairs made without notice must be limited to $14,750. (1/2 the original cost plus improvement of the lateral and drainage district involved) and improvements made without notice must be limited to $7,375. (1/4 the original cost plus improvements of the lateral and drainage district involved).
The cost of the work in controversy here was $24,800. Which was less than 9% Of the initial cost plus improvements of the entire joint drainage district but about 86% Of the initial cost plus improvements allocable to the land to be assessed. The reason for agreeing that the question of repairs or improvements is immaterial is obvious; the use of 25% Or 50% As a factor makes no difference regardless of the contention accepted.
II. Section 455.136 provides that cost of repairs shall be levied against the property of the District. No distinction was made in that section as to repairs limited to a specific lateral, drainage district or subdistrict. In Kerr v. Chilton, 249 Iowa 1159, 91 N.W.2d 579, the trustees proposed to levy assessments against the entire district for repairs limited to a specific lateral within the district. We said that such action was illegal. The levy must be limited to the lands originally assessed for construction of laterals (and benefited thereby). The effect of the holding there was to so construe § 455.136 as to limit the assessment to the lateral or subdistrict affected even though the term District is twice used and Subdistrict or Lateral does not appear in the § 455.136.
Here the trial court's excellent decree held that it would be inconsistent to limit the term district to subdistrict in § 455.136 () and not to so limit the same term in § 455.135 (). We agree.
III. Initially § 455.135 allowed repairs to be made and assessments to be levied in unlimited amounts. This resulted in considerable litigation involving the question of whether the work done was a repair or an improvement. One of the pertinent factors was the relative cost of the work as compared to the original cost of the project. A constant...
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...paid by some plaintiffs. Our review is de novo. Rule 334, Rules of Civil Procedure. For a related case see Thompson v. Joint Drainage Dist. No. 3--11, 259 Iowa 462, 143 N.W.2d 326. The joint district involved is an intercounty drainage district consisting of a main ditch serving the entire ......
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