106 Iowa 461 | Iowa | 1898
Lead Opinion
No authority is conferred on incorporated towns to construct ditches or drains in the manner or for the purposes-here contemplated. Section 480 of the Code of 1813 authorizes municipal corporations “to cause any lot of land within their limits on which water at any time becomes stagnant to-be filled up or drained in such manner as may b'e directed by a resolution of the council or trustees.” But this very evidently relates to water standing in depressions or pools, and not to large areas of low, wet, or swampy land which absorb the water, and on which it seldom stands, and never becomes stagnant. Besides, the authority of the council is limited to ordering such drainage only, or the lot to be so filled, as to obviate the nuisance occasioned by the standing of stagnant water. Bush v. City of Dubuque, 69 Iowa, 236.
Again, under section 18 of chapter 116 of the Acts of the Sixteenth General Assembly (now section 699 of the Code) the owner or lessee of land, who, by grading or filling it, obstructs the flow of water through a water course of any kind, may be required to construct a sufficient drain or passageway. This amounts to no more than the restoration of the natural-course for surface or other water. ' Cities are authorized “to-deepen, widen, cover, wall, alter or change the channel of water courses within their corporate limits,” by section 3 of.
Dissenting Opinion
(dissenting). — The statute under which-the proceedings in controversy were had was first enacted in the year 1872 (Acts Fourteenth General Assembly, chapter-220), and was incorporated in title 10 of the Code of 1878,. which related to internal improvements. There is nothing in-the language of the statute which indicates specifically that it was designed to apply to territory within incorporated cities- and towns. It does not refer to them, nor does it contain any of the terms ordinarily used to designate real estate within such corporations, as, “lots.” That fact, considered aloner would be of little, if any, importance in view of the general power given by the statute to boards of supervisors to cause-to be constructed ditches and drains whenever it would “be-conducive to the public health, convenience, or welfare.” But the statute does not state that the board of supervisors may cause a ditch or drain to be constructed wherever it would be-conducive to the public health, convenience, or welfare. A petition signed by persons owning “land” adjacent to the improvement is required, and the statute provides for the-assessment of all “land” benefited by the ditch or drain, foithe cost of constructing, repairing, or opening it. The terms-“land” and “real estate,” it is true, are interchangeable, and town lots are land; but it is true, as a general rule, when real estate in a city or town is intended to be included within the-
It is said, however, that incorporated cities and towns did not have power to drain such land as that in question, but only to drain water standing in depressions or pools. Even if that were true, it would not follow that the board of supervisors could have drained such lands by constructing ditches or drains within incorporated cities and towns. But, in my opinion, it is not time that such corporations lacked the power to drain wet land which was a menace to public health. They had power “to prevent injury or annoyance from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated.” Code of 1873, section 456. The manner in which the power thus conferred should be exercised was not pointed out, but of necessity it authorized the doing of whatever was reasonably necessary and lawful to accomplish the end authorized ; and, if a ditch or drain were necessary to accomplish it, then the power to construct the ditch or drain was included in that given. The fact that the cost of such ditch or drain could not have been assessed upon the real property which was benefited by it, in the mannerprovided by the general drainage act, does not seem to me to be important to ascertain the power given. The purpose of the drain would not be to reclaim laud for the purposes of cultivation, but to preserve the public health. I do not assent, however, to the conclusion of the majority that the land in question was not within the scope of section 480 of the Code of 1873. That provided that “municipal corporations shall have power to cause any lot or land within their limits on which ¿vater at any time becomes stagnant, to be filled up or drained in such manner as may be