Zinser v. Bd. of Sup'rs of Buena Vista Cnty.

• Decision Date: 16 December 1907
• Citation: 114 N.W. 51,137 Iowa 660
• Parties: ZINSER ET AL. v. BOARD OF SUP'RS OF BUENA VISTA COUNTY ET AL.
• Court: Iowa Supreme Court

137 Iowa 660

114 N.W. 51

ZINSER ET AL.

v.BOARD OF SUP'RS OF BUENA VISTA COUNTY ET AL.

Supreme Court of Iowa.

Dec. 16, 1907.

Appeal from District Court, Buena Vista County; A. D. Bailie, Judge.

Appeal from an order of the district court reversing a resolution of the board of supervisors of Buena Vista county denying a petition praying for action appropriate to the drainage of a large body of land. Some of the petitioners appeal. Reversed.Edson & Moulton and Healy & Healy, for appellants.

F. F. Faville, for appellees.

LADD, J.

The board of supervisors of Buena Vista county in special session February 21, 1906, for the consideration of the amount of damages to be awarded in drainage district No. 4, decided “that the cost of construction and the amount of damages awarded is excessive and is a greater burden than should be properly borne by the land benefited by the said improvement; therefore the prayer of the petitioners is denied.” The board had adjourned to this date after full hearing of petitioners and those filing protests about two weeks previous, when there had been a finding that it had jurisdiction that proper notice had been given as required by law, that the petition was sufficient in matter and form, and it had resolved “that the improvement called for by said petition would be conducive to the public health, convenience, and welfare, and would be of public benefit and utility.” Thereupon four of the petitioners and two other persons interested caused notice of appeal to the district court to be served and a transcript of the proceedings to be filed with the clerk. The board of supervisors and remonstrants then moved that the appeal be dismissed as unauthorized by law. The motion was overruled, and this is the first error assigned. The statute was amended by section 4 of the Acts of the 31st General Assembly (Laws 1906, p. 56, c. 85, § 4) so as to expressly authorize an appeal from the refusal of the board of supervisors to establish a drainage district. In view of this, the determination of whether the ruling on this motion was erroneous would be of no practical value save in the case at bar, and as the order therein must be reversed on other grounds it will not be considered.

2. The petition described all the land in the watershed at the head waters of the Coon river, and the civil engineer appointed under the provisions of section 2 of the act proceeded on the theory that commissioners subsequently to be appointed by the supervisors were to determine the extent of the district, and that he was not required to recommend what lands should be included therein. The petition cannot be expected to be exact, as it is drawn prior to the survey and is merely a preliminary paper. If more land should be covered by the district than described therein, the engineer must so recommend; if less, he should favor the elimination of part; and the fact that the petition asserts that all land included therein is subject to overflow or too wet for cultivation when this is not so will not deprive the board of jurisdiction, as contended by appellant. Indeed, about the only office of the petition, aside from alleging the character of the land and the nature of the improvement, seems to be to point out the locality to be drained, in a general way, and to indicate those who are to give security for the preliminary costs and expenses to be paid in event the petition shall be rejected by the board of supervisors.

3. Appellants contend that, even if this be so, the report of the civil engineer appointed by the board of supervisors to survey was not such as to warrant that body in establishing a drainage district. Some of the lands included in the petition were omitted, but practically all within the watershed were returned as properly within the district. The engineer seems to have been of erroneous opinion that being in the watershed was sufficient reason for the inclusion of lands in his report, and that the duty of fixing the limits of the district did not devolve upon him, but upon the assessment commissioners. Ascertaining the limits of the watershed was of no importance save in indicating the trend of drainage and what the dimensions of the ditch should be. The body of land to be described in the petition is that subject to overflow or too wet for cultivation, and the duty is enjoined upon the engineer to “examine and survey the lands described in said petition, and other lands if necessary, and locate such improvement or improvements as may be petitioned for along the route described in the petition, or other route answering the same purpose if found more practicable or feasible, as will be for the public health or utility, or conducive to the public health, convenience, or welfare, and he shall make return of his proceedings to the county auditor, which return shall set forth a full and complete description of all lands which in his opinion will be affected by said improvement or improvements, and the names of the owners thereof as they appear in the transfer books of the auditor's office, and he shall also return a plat and profile of said lands and proposed improvement or improvements with the levels and elevations of the same thereon, and how said different tracts of land will be affected thereby, and the course and length of the drain or drains through each tract of land, and its situation and elevation so far as he may deem necessary, together with the probable costs, and such other facts and recommendations as he may deem material.” The test to be applied is whether the tract of a particular owner will be affected by the improvement, and to aid the board in the establishment of the district the engineer is required to return such only, and to state how, and in what manner, the different tracts will be affected. This return of the engineer is the basis of all subsequent proceedings. The allegations of the petitions may be and usually are partisan and not scientifically accurate. The return of the engineer, however, is the report of a disinterested expert, and so highly esteemed by the law that it, rather than the petition, determines upon whom notice shall be served; and when no claim for damages is filed, and there is no controversy with any landowner as to whether his land shall be included within the district,the supervisors may, if deemed advisable, locate and establish the same in accordance with the recommendation of the engineer, if “they shall find such improvement conducive to the public health, convenience or welfare or to the public benefit or utility.” Section 5, c. 68, Acts 30th Gen. Assem. (Laws 1904, p. 61). The law contemplates the establishment of the district as returned by the engineer, save as changed by the board of supervisors upon the protest of some landowner that his land has been improperly included within the proposed district or that lands of others have been improperly excluded. And where there is no appeal therefrom, the order of the board of supervisors, based thereon, establishing the district, is conclusive that all the lands included therein will be benefited by the improvement. Section 6 of said act authorizing the appointment of the commissioners and directing the classification and assessment of the lands expressly so provides, and this court has upheld this provision on the sole ground that the landowner has had an opportunity to be heard on the return of the engineer as to whether his land shall be included in the district. Oliver v. Monona County, 117 Iowa, 43, 90 N. W. 510. The objection to the deferring this to the assessment commissioners is that under the language of the statute such commissioners cannot be appointed until after the drainage district has been established. They are to assume that all land within the district is benefited, and to classify and assess accordingly. Section 12 of said act. Without an adequate survey they would experience great difficulty in classifying and assessing the different tracts of land according to the benefits conferred. It is not contemplated that they shall survey the lands, though they are not prohibited from so doing, nor is it essential that the engineer appointed to survey be designated as one of the assessment commissioners. Another may be chosen, and in either event his report should contain sufficient data to enable them to perform their duties without a resurvey of the lands.

4. The members of the board of supervisors are not presumed to be men of science and familiar with drainage of large areas of land. For this reason the law has authorized the selection of a competent engineer and delegated to...