Trustees of Green Bay Levee and Drainage Dist. No. 2, Lee County v. Alexander, 50083

• Court: United States State Supreme Court of Iowa
• Writing for the Court: THORNTON
• Citation: 252 Iowa 801,108 N.W.2d 593
• Parties: TRUSTEES OF GREEN BAY LEVEE AND DRAINAGE DISTRICT NO. 2, LEE COUNTY, Iowa, et al., Appellants, v. Frank B. and Ora ALEXANDER, husband and wife, et al., Appellees.*
• Docket Number: No. 50083,50083
• Decision Date: 04 April 1961

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108 N.W.2d 593 252 Iowa 801 TRUSTEES OF GREEN BAY LEVEE AND DRAINAGE DISTRICT NO. 2, LEE COUNTY, Iowa, et al., Appellants,
v.
Frank B. and Ora ALEXANDER, husband and wife, et al., Appellees.* No. 50083. Supreme Court of Iowa. April 4, 1961.

[252 Iowa 803]

Page 595

Napier & Fehseke, Fort Madison, for appellants.

Johnson & Phelan, Fort Madison, for appellees.

THORNTON, Justice.

Plaintiffs are the trustees of Green Bay Levee and Drainage District No. 2, Lee County, Iowa, and [252 Iowa 804] individual owners of land in the district known in the record as 'high tax land.' Defendants are owners of land in the district known as 'five cent land.'

The district was established July 14, 1916, and thereafter a board of trustees was established to operate the district.

The district is a tract of land of 13,336.67 acres lying south and west of the confluence of the Skunk and Mississippi Rivers in Lee County, bounded on the east and south by the Mississippi River and on the west and north by the bluffs and the Skunk River. A small portion of the district lies north of the Skunk River in Des Moines County. The land described in the caption is 4,521.32 acres farthest away from the Mississippi, is the five cent land, and is owned principally by the defendants who are the Green Bay farmers or their grantees. The land owned principally by plaintiffs is the pumping area, is 8,815.67 acres, and was acquired by them or their grantors by tax deeds in the 1930's. The pumping area lies between the five cent land and the Mississippi.

In 1910 the Mississippi River Power company was authorized by the Congress to construct a hydro-electric dam and power plant at Keokuk and to condemn and acquire flowage rights along the river above the dam. The project was completed in 1913. The power company acquired ownership or flowage rights over practically all the land in the pumping area, now owned by the individual plaintiffs.

Counsel for the parties have by much work presented an excellent stipulation showing the proceedings relating to the creation of the district. The stipulation shows the petition which eventually resulted in the formation of the district was filed January 25, 1915. The engineer's report was filed and statutory notice given of the pendency of the petition. On December 15, 1915, owners of the five cent land, the Green Bay farmers, the predecessors in title to defendants here, filed remonstrances against the establishment of the district, basically on the ground that their lands would not be benefited by the creation of the district, nor by the reclamation of land owned by the power company and necessitated by its artificial raising of the level of the Mississippi.

[252 Iowa 805] On June 8, 1916, the contract between almost all of the farmers who had filed remonstrances and the power company was signed. This contract is the point of controversy in this action. Briefly, the contract provided that in consideration of the concessions and obligations therein set out the levee and drainage district and pumping station may be established by the board of supervisors substantially as outlined by the plat attached and with assessments for establishment, construction, maintenance and operation thereof as therein provided and according to the terms thereof. The sense of the contract is, the entire cost of the establishment, construction, maintenance and operation of the district and pumping station was to be assessed against the land then owned by the power company and charged against such land, except the Green Bay farmers were to be assessed as provided by statute for levees, ditches and drains wholly on their lands and were to be assessed five cents per acre annually for

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maintenance after the completion of construction. If five cent land was later acquired by the power company, its agents, or employees, it was to be assessed according to benefits received, the five cents per acre to be no longer applicable. The agreement was binding on the power company, its successors, grantees and assigns.

The contract was filed with the board of supervisors on June 20, 1916, and the board on that day approved the report of the engineer as amended, found the petition sufficient and the improvement necessary, and made the contract a part of the proceedings. On July 14, 1916, the board passed a resolution establishing the district, and appointed commissioners to make apportionment of costs and benefits as required by law and the contract on file in the proceedings. On the same date the board passed a resolution to issue bonds, such to be a lien only on the land of the land of the power company. Three landowners filed notices of appeal, one perfected his appeal to the district court. This appeal was dismissed October 10, 1916. On October 7th these three landowners had entered into a contract with the power company similar to the five cent contract and providing the power company and its successors were to pay any assessments in excess of the five cents per acre on the land of the farmers, such excess to be a lien on the land of the power company. [252 Iowa 806] This contract was not filed with the board or auditor, but was filed in the recorder's office.

The plaintiffs filed their petition February 3, 1956, and filed numerous amendments, apparently down to and including the 5th day of May, 1958, when exhibit 'B' was attached to their petition, a resolution passed on that date by the board of trustees. The resolution found a reclassification of the land was necessary and appointed commissioners to reclassify all the land subject to assessment in the district.

In their petition, as amended, plaintiffs set out the controversy between plaintiffs and defendants, that defendants claim the five cent contract limits the annual assessment for drainage district purposes against their lands to a maximum of five cents per acre and prohibits reclassification of the land in the district; and plaintiffs claim said contract does not so limit assessments on defendants' land or reclassification according to benefits received. Plaintiffs set out reasons A through X why said contract is invalid and of no force and effect. They allege the Acts of the Fifty-seventh General Assembly purporting to prevent a reclassification in districts established by mutual consent are violative of the constitution. They ask declaratory relief construing the contract and the rights of the parties as to assessments; and that said five cent contract be held null and void, that plaintiffs may reclassify and reassess defendants' land, and that the district was not one established by mutual agreement. In other words plaintiffs ask that they may assess defendants' land in excess of five cents per acre annually.

Defendants contend this is not a case for declaratory relief and set up a 1930 decree in case number 7703 as res judicata and estoppel, also that plaintiffs are guilty of laches. In their reply plaintiffs set up eight reasons why the pleas in res judicata and estoppel are ineffectual. The trial court held the defense of res judicata was good and plaintiffs were estopped by the 1930 decree to question the validity of the contract, plaintiffs were guilty of laches, and the district was one established by contract.

I. The first question for determination is the plea of res judicata. Recently we quoted with approval the general [252 Iowa 807] definition from 30A Am.Jur. Judgments, § 324, p. 371, as follows:

'(Briefly stated), the doctrine of res judicata * * * is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts

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in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.'

We pointed out the test is: 1. Same parties, or parties in privity. 2. Same cause of action. 3. Same issues. Also that the doctrine may exist under two situations: (1), as a bar to a second action upon the same cause of action, and (2), as a bar to relitigation of particular facts or issues in a different cause of action. In re Estate of Richardson, 250 Iowa 275, 281, 93 N.W.2d 777, 781, and citations.

In Kunkel v. Eastern Iowa Light & Power Cooperative, 232 Iowa 649, 657, 5 N.W.2d 899, 903, the two phases of the doctrine are set out. We there quote from Citizens' State Bank of Panora V. Snyder, 181 Iowa 11, 13, 162 N.W. 6, as follows:

'We have held there is a distinction between an adjudication and an estoppel to relitigate things before litigated. There is an adjudication in strictness when a suit is repeated. But short of that there may be an estoppel which defeats an action because some fact which is controlling in both actions was litigated and set at rest in the first action.'

In both instances the parties must be identical or in privity. And no one can be barred by res judicata until he has had full legal opportunity for an investigation and determination. State ex rel. Howson v. Consolidated School District, 245 Iowa 1244, 1248, 65 N.W.2d 168, and citations.

Plaintiffs urge here the 1930 decree was the result of collusion and fraud, there was no identity of parties, or of subject matter and because no specific ground of the prior suit is known it can not be applied here, there has been a change of circumstances since the decree and land in a drainage district is always subject to reclassification.

The 1930 decree was obtained by default in the Lee District Court. In April, 1928, the board of supervisors adopted a resolution assessing the lands of the Green Bay farmers, grantors[252 Iowa 808] of defendants here, in excess of five cents per acre provided for in the contract. On January 3, 1929, the Green Bay farmers commenced action number 7703, an action in equity against the board of supervisors, ex officio Trustee of Green Bay, Lee County, Iowa, Drainage...