176 Iowa 690 | Iowa | 1916
The errors assigned relate to the two matters before stated; that is, that the trial court erred in refusing to set aside the assessment because the commissioners and the board of supervisors, failed to follow the procedure prescribed by the statute, and erred in refusing to reduce the assessment. Appellant states in argument that the question presented is whether or not the assessment levied against the property of appellant is equitable and is merely a question of fact, and appellee states it -substantially the same way: whether the apportionment of benefits assessed against appellant’s property is an equitable apportionment as compared with that assessed against the various other tracts in the district.
The controversy arises over the assessment of benefits to appellant’s property, consisting of right of way, yards and lots in Drainage District No. 1, Dubuque County, Iowa. Some large maps or plats were! offered in evidence and are contained in the abstract. It is not practicable to set these out in the opinion, and we shall attempt to describe the situation as best we may. The drainage district comprises about 475 acres of land lying in a comparatively narrow valley. As one witness puts it, this district is not like others out in the country and away from race tracks, railroad tracks and other things. The district is situated north of and outside the city of Dubuque, the southerly boundary of the district coming to the northerly limits of the city. The land com
The property of appellant lying within the district consists of the right of way above 1’eferred to, passing through the heart of the district, and six tracts of land of varying sizes, from a fraction of an acre to 9.8 acres. The last mentioned tract comprises defendant’s yards, as we understand the record. At a point near the northerly end of this last named tract — that is, the yards — is a large culvert through the railroad right of way, and Lateral No. 2 commences at the discharge end of this culvert. The water from the Peru Boad Valiev, or North Dubuque, lying easterly of these
Prior to the establishment of a drainage district, appellant maintained nine wooden bridges on its right of way along the stretch of track, for the purpose of affording private crossings for the people who owned the land adjacent to the railroad, and these bridges frequently washed out. • Occasionally Little Maquoketa River overflows its banks, and the water backs up into this territory, and frequently, when there is a heavy rain, the water comes.down from the surrounding hills and the valleys, causing a flooded condition. Prior to the construction of the drainage ditch, the water remained on the land for a considerable time, soaking the embankment on which the railroad was built, and at times the embankment
The amount necessary to be raised for the improvement had been ascertained to be $21,500. As stated, the 151 tracts among which to apportion this amount were irregular in shape and varying in size. The three commissioners entered upon their work and went carefully over the ground, examining each piece of property and making notes at the time of what their first impression was as to the proportional benefits accruing to each tract. When they had gone over the entire district, they found that the amount thus tentatively apportioned was in excess of the amount required. They then went over the entire district, re-examining each piece, making changes, and reducing some of the apportionments, and, when
Some of the property owners filed objections to the assessment as fixed by the commissioners, and hearings were had by the board of supervisors, and the testimony of a large number of witnesses was taken. The hearings before the board continued about nine days. The appellant was one of the objectors so appearing. The board of supervisors not only heard this testimony, but personally examined the various tracts of land in the district, going over the same three or four times, the last occasion being in the spring of 1913, after the ditch had been practically completed, when they were able to observe its effects, to some extent .at least. Thereafter, the board, fixed May 9, 1913, for further considering and acting upon the report, and gave notice to appellant of a meeting and the intention to increase the apportionment on appellant’s right of way from $1,600, as fixed by the commissioners, to $2,100. At this meeting and after the hearing, the board adopted its resolution confirming and fixing assessment of benefits. By this resolution, the board reduced the assessment as fixed by the commissioners on 10 tracts of land, the total reduction amounting to $1,710, and increased the assessment over that recommended by the commissioners on three tracts, the total increase being equal to the amount of reductions made. The assessments were increased on the property of the Dubuque Industrial Corporation from $4,600 to $5,500, the racetrack property of the Union Electric Com
All of the three commissioners appointed to assess bene- . fits and fonr of the seven members of the board of supervisors were witnesses on the trial in the district court. Mr. Anderson, defendant’s engineer, was called by appellant ag. a witness and testified, as to the various tracts in the district-owned by the appellant, that the amounts of the assessments, for benefits apportioned against all of them, taking into consideration the benefits received by these tracts and the benefits-received by the other tracts in the territory, were in fair proportion to the other tracts, and just and equitable, compared with the other tracts, and that the benefits exceeded in each case the assessment. The two other commissioners testified substantially the same. The four members of the board of supervisors who were called as witnesses for appellee each testified, in substance, that of the $21,500 that was required to be raised, the $2,100 apportioned and assessed! against the right of way of appellant was the fair, equitable and reasonable proportion of said sum which that property should bear, taking into consideration the various amounts assessed against the other pieces of property in the territory. The cross-examination of these witnesses is set out at some length by appellant in argument, and it is thought that, thereby their testimony was shaken, and it may be this is so to some extent, but we have, as of course we should have, taken their testimony all together. The only testimony-offered by appellant contradicting this testimony of the commissioners and supervisors is that of Mr. Delo, its engineer, whose testimony was that none of appellant’s property had been benefited by the drainage improvement, and that each tract was worth, after the drainage system was constructed, the same as it was before. .
We have heretofore set out the testimony of defendant’s engineer, Anderson, and other witnesses, that the apportionment was equitable, etc. No fraud is claimed. Even though we should think the assessment against appellant’s right of way was high, we think defendant has not overcome the presumption in favor of the assessment, nor has it presented any facts from which this court can determine at what amount the assessment should be fixed.
Our conclusion is that the judgment of the district court was right, and it ought to be and is — Affirmed.