135 Iowa 488 | Iowa | 1907
On the 14th of November, 1904, some fifty resident landowners of Woodbury county filed with the auditor of said county a petition directed to the board of supervisors of said county, as provided by section 2, chapter 68, Acts 30th General Assembly, averring that certain lands therein described were subject to overflow and too wet for cultivation, and that the public benefit and utility and the public health, convenience, and welfare would be promoted by the construction of a ditch, to be designated the “ Farmer’s Ditch,” for the purpose of draining such land. The petition described about eighty sections of land within the proposed drainage district, which district would extend from a point near the corporate limits of Sioux City, southeasterly across Woodbury county, to the Monona county line. On said day the petition and a bond were presented to the hoard of supervisors of said county, and said board appointed an engineer to make the preliminary examination and survey, as provided in said section 2. On the 21st of November, 1904, the engineer filed his report, as provided by law, which contained specifications and a recommendation for a drainage system consisting of a main ditch and seventeen lateral ditches. His report showed the total length of the main ditch to be nineteen and one-half miles, and the estimated size to be such that it would discharge one hundred and ten thousand cubic feet of water per minute. The size of the main ditch at the starting point was to be ten feet at the bottom, which width was to he gradually increased until a width of thirty feet was reached at the outlet of the ditch into Whiskey
The engineer reported: “ That in order to provide sufficient waterway for the combined area of Whiskey Creek and the proposed farmer’s ditch, it will be necessary to increase the width of the óhannel of said Whiskey Creek from the mouth of the proposed farmer’s ditch to the Woodbury and Monona county line to sixty feet. ... To make this change there will be' required for the fight of way a strip of land one hundred feet in width and five hundred feet in length.” The statutory notices were served, and the hearing on the petition was fixed for the 12th day of January, 1905. On the 6th of January, 1905, the appellant filed her claim. On the 12th of January, the board considered the petition but continued the hearing until September 5th, because of the claims for damages. In the meantime, commissioners were appointed to assess the ’damages sustained by the claimants, and they reported on the 28th of August, saying respecting the land in controversy: “ On account of overflow of certain of the lands described damages will result. . . . Amount allowed $4,200.” On the- 5th of September, 1905, the board met, pursuant to adjournment, for the purpose of considering the report of the appraisers, and their session continued oyer several days; the final resolution being passed on the 26th of September. On the 6th of September, the board considered the question as to whether damages should be allowed for “ overflow,” and on said day passed the following resolution: “ Unsolved, that no damages in said the Farmer’s Ditch matter will be allowed for overflow.” On the 26th of September, 1905, it was resolved: “ That in accordance with the resolution heretofore made by this board, the awards made by the appraisers for damages by reason of overflow be and are hereby disapproved, and
When the time for final action shall have arrived and after the filing of the report of the appraisers, said board shall consider the amount of damages awarded in their final determination in regard to establishing such levee or drainage district, and if in their opinion the cost of construction and the amount of damages awarded is not excessive and a greater burden than should he properly borne by the land benefited by the improvement, they shall locate and establish the same, and shall thereupon proceed to determine the amount of damages sustained by each claimant, and may hear evidence in respect thereto and may increase or diminish the amount awarded in respect thereto; and any party aggrieved may appeal from the finding of the board in establishing the improvement district or from its finding in the allowance of damages to the district court, etc.
It must be conceded that its language is somewhat ambiguous, and its meaning not entirely free from doubt; but we think it may fairly be construed to mean that the question of damages shall be finally determined at the time the ditch is located and established, and that an appeal taken within ten days thereafter is in time. The' language of the section is that “ any party aggrieved may appeal from the finding of the hoard in establishing the improvement district or
The board of supervisors of any county shall have jurisdiction, power and authority at any regular, special or adjourned session, to establish a drainage district or districts, and to locate and establish levees, and cause to be constructed as hereinafter provided any levee, ditch, drain or water course, or to straighten, widen, deepen or change any natural water course, in such county, whenever the same will be of public utility or conducive to the public health, convenience or welfare, and the drainage of surface waters from agricultural lands shall be considered a public benefit and conducive to the public health, convenience, utility and welfare.
But the appellant contends that section 4 of the Act, which provides for filing claims for damages, is broad enough to warrant the board in allowing her claim, and that said section and section 47, requiring a liberal construction of the entire Act, are together sufficient warrant therefor. •But the language of section 4 is general and only provides for the filing of claims. It cannot be construed to confer power on the board which is expressly .withheld by other provisions of the Act. Section 47 does no more than to require a liberal construction of the Act when it can be done without repealing some of its express provisions.
We are of opinion that the board of supervisors had no power to pay the appellant’s claim, and that the judgment of the district court should be, and it is, affirmed.