197 Iowa 1208 | Iowa | 1924
I. The drainage district embraces about two and one-half sections of land. The general slope of the land is from the northeast portion of the district to the southwest. Accordingly, the drainage improvement is laid, beginning in the northeastern portion of the district, coursing in a southwesterly direction, crossing the district, and consists of a covered tile drain laid through the low land of the district, which was wet and
II. Plaintiff filed objections of great length before the board of supervisors, and renewed said objections in the district court, and presses them with vigor on this appeal. The objections argued on this appeal are, in substance, that the board was without jurisdiction to levy the' assessment of $2,000 against plaintiff company,- that the railroad company’s right of way is not materially benefited, and should not be assessed, in any event, more than a nominal amount; that the board and the trial court failed to equalize the assessment against the railway and property with the other property in the district; that the portion of Section-1989-al2, Supplemental Supplement, 1915, reading “but in no case shall it be competent to show that the lands assessed would not be benefited by the improvement,” is unconstitutional and void, as being violative of due process; and that in any event the assessment complained of is excessive.
“Whereas the act of Congress, called the Federal Control Act, approved March 21, 1918, provided that ‘carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control, or with any order of’the President;’ and whereas since the director general assumed control, of said systems of transportation, suits are being brought and judgments and decrees rendered against carrier corporations on matters based on causes of action arising during Federal control for which the said carrier corporations are not responsible, it is right and proper that the actions, suits, and proceedings hereinafter referred to, based on causes of action arising during or out of*1212 Federal control should be brought directly against said director general of railroads and not against said corporations:
“It is therefore ordered that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the director general of railroads, claim for death or injury to person, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control, or operation of any railroad or system of transportation by the director general of railroads, which action, suit, or proceeding, but for Federal control, might have been brought against the carrier company, shall be brought against William G. MeAdoo, director general of railroads, and not otherwise.”
Speaking of the act of Congress relative to Federal control, in the Ault case the court said:
“The plain purpose of the above provision was to preserve to the general public the rights and remedies against common carriers which it enjoyed at the time the railroads were taken over by the president, except in so far as such rights or remedies might interfere with the needs of Federal operation.”
The court further said:
‘ ‘ The judgment against the director general, so far as it provided for recovery of the penalty, was erroneous.”
The Masteller case was an action at law, to recover damages for personal injury, and we held that the said action may not be maintained against a railway company in the possession of the Federal government, under the War Emergency Act.
The instant proceeding is not for recovery of a penalty, as in the Ault case, nor for a personal judgment, as in the Masteller case. The assessment laid in the instant case in no way interfered with the operation of the road under Federal control. It was a levy of an assessment under statute, similar to the way in which general taxes are assessed and levied against property. True, under Section 1989-al8, Code Supplement, 1913, if such special assessment is not paid by the railroad company it becomes a “debt due personally from the railroad,” and may be collected in a suit at law by the county. That stage was not reached while the railroads were under government control, and
It is urged that there was lack of jurisdiction, because no assessment was made against the highways within the district. Section 1989-a19, Code Supplement, 1913, provides:
2. DRAINS: assessments: nonbene-fiteci highways. "Whenever any highway within the levee or drainage district will be beneficially affected by the construction of any improvement or improvements in such district, it shall be the duty of the commissioners appointed to classify and assess benefits to determine and return in their report the amonnt of benefit to such highway, and notice thereof shall be served upon the clerk of the township in which said highway is located, as provided in the case of an individual property owner."
While it was said by one `witness that "there might possibly be some benefit to them [highways] from such an improvement," it is not shown that the highways required drainage.
“As far as tbe embankment is concerned, I do not think the water' has affected it any. There might be a little benefit in getting water away, on taking care of tbe fences. ’ ’
On cross-examination, Jacobson testified:
“I wouldn’t say that water standing there for years and soaking into tbe base of said embankment would have no effect upon it. It might have a slight effect, — I do not know.”
Another witness for plaintiff testified:
“If tbe water might be taken out of tbe ground so as to prevent tbe fence posts’ heaving, there would be a slight saving. It would amount to tbe value of two men’s services for one day’s time, at 48 cents an hour, for eight hours a day. That would be about the annual saving. That is the one saving, — just the fence posts. As far as the roadbed is concerned, it is not noticeable.”
Several witnesses for plaintiff testified that they knew of no benefit whatever to the railroad company from the improvement.
Anderson, the engineer in charge of the construction of the improvement, and one of the commissioners to assess benefits, testified that the improvement drained out a pond or lake, and afforded the farmers an outlet for tiling; that the improvement was a material benefit to the farm lands in the district, and largely enhanced the value thereof; that some of the land was worth about $125 per acre before the improvement, and about $300 an acre after the improvement. Concerning benefits to the railroad company he testified:
“It removed the water from the right of way that had been standing along the tracks. It would benefit the Northwestern Eailroad by reducing the cost of maintenance and upkeep of this particular strip of track, and also by reducing liability to failure of the embankment.”
Anderson testified that the commission to assess benefits “took into consideration the tendency to remove water and prevent the grade being soft.”
The assessment against the property of plaintiff is reduced from $2,000 to $750. With this modification, the judgment of the court below'is affirmed. — Modified and affirmed.