178 Iowa 701 | Iowa | 1916
The said plat was prepared by an engineer, at the ■instance of the defendants, and was offered in evidence by the defendants. In some specific respects, its correctness is disputed by the plaintiffs, and the questions thus raised will be considered in the opinion. Otherwise, the general correctness of the measurements and elevations shown on the plat is well supported by the evidence, and. is not challenged. The plaintiffs, Leach, Cowley and Smith, are the principal landowners in a certain drainage subdistrict, No. 73, which subdistriet is a part of the original district, No. 7. The defendants are the joint owners of the northeast quarter of Section 2, which land is located at the head of Subdistrict No. 73. Subdistrict No. 73 was laid out so as to include 30 acres of the defendants’ land in their southwest 40, and 5 acres thereof in their southeast 40, the rest of the land of the defendants being omitted from the subdistriet. The defendants claim that all their land within the boundaries indicated upon the plat has its natural course of drainage towards
Near the northwest comer of the southwest 40 of defendants’ land is a pond, noted on the plat as 109.01. This is a strategic point in the controversy. It is the contention for the plaintiffs that this pond lies wholly outside of the sub-district; whereas the defendants contend that it is wholly within it. The plaintiffs introduced evidence tending to show that the intention was to run the north line of the subdistrict about 200 feet south of such pond. The engineers on both sides, however, concede that, following the courses and distances as made of'record in the establishment of the district, the north line of the district runs either through the center of the pond or wholly north of it. It must be taken as .a fact, therefore, that the district, as laid, includes at least the south.half of this pond. There is further dispute at this point. For the plaintiffs it is contended that the overflow from this pond runs west, and flows naturally towards the open ditch of the original District 7; whereas the defendants contend that this pond has two outlets, one flowing southeasterly, toward point 108.02 (being the head of the tile drain of Subdistrict 73), and the other flowing southwesterly along the line ABCD, entering the tile drain of Subdistrict 73 near the south line of the Leach land. The engineers on both sides measured the elevations of these two outlets. The engineer for the plaintiffs found the elevation of the outlet to the southeast to be 7 inches higher than that to the southwest; whereas, the engineers for the defendants found such differ-
Turning our attention now to the other wet lands of the defendants, lying north of the subdistrict, certain ponds are indicated thereon, together with the elevations of their deep
The next strategic point in the case is pond 107.41. This is the deepest pond upon the area. The defendants proposed to take a short cut in the discharge of the waters of this pond. From the line of tile between 109.01 and 108.02, they proceeded to construct a line , . . . .. to the northeast, as indicated on the plat, intending to connect with pond 107.41. In * order to accomplish this, they had to cut across high ground having an elevation of from 1 to 2 feet. This elevation constitutes the divide for which the plaintiffs contend as fixing the boundaries of the subdistrict. This divide extends from southeast toward the northwest, in the direction of pond 109.01, becoming lower in elevation as it approaches such pond, and quite disappearing before it reaches the same. The plaintiffs contend that it was a clear case of diversion of water from its natural course, to take
' It is made to appear, by the actual measurement of the engineers upon the ground, that the boundaries of the sub-district, as laid at this point, lie 300 feet northerly of the divide in question. We have, therefore, a situation somewhat similar to that obtaining at pond 109.01. In this 40-acre tract, 30 acres of defendants’ lands were included within the district. They were assessed upon that basis. Surely it does not lie with a district or its beneficiaries to challenge the right of the defendants to extend their tile to the boundaries of the district as laid. The exercise of this right at this point would carry the defendants’ drain beyond the divide, and into the low ground contiguous to the pond in question. In view of the fact that the extension of the tile into the pond beyond the boundary could have no other effect than to carry, by a short and practical course, the same water into the same drain into which it would ultimately come, even if brought by the more roundabout course, we see nothing in such situation to call for interference by 9, court of equity. The plan proposed is consistent with the substantial rights of the parties, and is clearly in accord with the requirements of practical drainage. We have aimed at all times to construe the drainage law and drainage rights consistently with practical and economic methods of drainage. Practical drainage does not take great account of inches at the surface. The grade line is to be found along the bottom of the ditch, and not at the surface of the ground. Slight elevations of the surface should not be permitted to balk or deflect a scheme which is demanded by practical and economic considerations, if the scheme as a whole adapts itself to the general course of drainage. Such is the legislative edict, and such is the
“Every extensive drainage district necessarily has within it varying elevations. It may include ponds and minor watercourses, and these may be separated from each other by the irregularities of a comparatively flat surface. The statute should be construed in a practical way and with due regard to the practical engineering problem involved in the given drainage project. If every increased elevation of a foot or two could bar the progress of a drain toward its ultimate outlet, then few drainage projects would be practicable. A drainage ditch usually is of varying depth, and this variation is necessarily caused by the differing elevation at the surface. We do not think that the difference in the elevation in this case should be deemed sufficient to show a diversion of water from its natural course within the meaning of the statute. We think, also, that the course adopted by the engineer was permissible by the express terms of the statute. The provision relied upon by appellant is that portion of Section 1989-a2 which reads as follows: ‘ That the ditches or drains herein provided for shall be surveyed and located along the general course of the natural watercourses, or in the general course of natural drainage of the lands of said district, having due regard for straightening and shortening of such natural streams, watercourses, and course of natural drainage.’ It will be noted that this provision permits a drain to be laid ‘in the general course of natural drainage of the lands of said district,’ and it permits the ‘shortening of such natural . . . course of natural drainage.’ The most that can be said of drain 44 is that it tended to shorten the natural course.”
The case of Dorr v. Simmerson, 127 Iowa 551, is instructive at this point. That case involved the drainage of a pond which was situated upon a divide, and discharged its overflow through two outlets, in opposite directions and into different watersheds, one outlet being slightly lower in elevation than
The greatest menace apparent in the record to the future efficiency of the main drain of this subdistrict, is the possible insufficiency of its outlet at the open ditch of the original District No. 7. The levels of the engineer show that, when the main ditch is full of water, the tile drain will also be full, for the greater part of its length. This condition, of course, can only be remedied by increasing the efficiency of the open ditch. This menacing condition will not be increased by the taking of defendants’ water through the tile drain. If all the water from defendants’ land were conducted to the head of the open ditch, in accordance with the contention of the plaintiffs, it would contribute just as much to the filling of the open ditch as if it* reached it by any other course.
Whether the conclusion reached by us brings us to an equitable result, is a question to which we have given much consideration. It is argued, with much force, that the effect of such conclusion will be to confer benefits upon 30 or more acres of lands of the defendants'for which they have, paid no assessment. The proposition, upon the face of it, appeals to our sense of equity, and we have considered much whether it is within our power to impose equitable conditions
It is urged for the plaintiffs that the defendants ought to. have objected to the formation of the district, and ought to have insisted upon a larger inclusion. As against that, it should be said for the defendants that they had nothing affirmatively to do with the organization of the subdistrict. .They were nonresidents, and knew of the proposed organization of the subdistrict only in a general way. There were no monuments upon the ground to indicate anything. It is true they could have ascertained from the public records just what was proposed. We think, however, their duty was no greater in the premises than was that, of the other landowners. It appears from the assessment of benefits that the defendants were charged with about one seventh of the total cost of this enterprise; and this was charged against them for a mere outlet, without the construction of one foot of improvement on their land. The 30 acres included, within the district out of the southwest 40 of defendants’ land, was the only land in the district that was classified for the purpose of assessment at 100 per cent, and it was assessed at the rate of $14 per acre. Though the entire improvement was constructed upon the lands of the three plaintiffs, not one of them was assessed approximately as high per acre as was the land of the defendants, to which only an outlet was awarded. This circumstance is, to our mind, strongly corroborative of the
A consideration of the assessment of benefits made against the defendants for their mere outlet, as compared with the assessment of benefits made against the other principal contributors both for outlets and a constructed improvement, leads us to believe that the conclusion we reach is not inequitable in result. We have no occasion, therefore, to devise equitable conditions to impose upon the defendants. We are quite satisfied from the record that the threatened injury to the plaintiffs will never materialize, and that the amount of assessment made against the defendants for the benefit of outlet was sufficient to entitle them equitably to the utilization of such outlet in the manner proposed.
The conclusion thus reached renders it unnecessary that we should consider other questions pressed upon our attention by the appellants. For the reasons indicated, the decree below must be — Reversed.