73 Iowa 598 | Iowa | 1887
Lead Opinion
Chapter 188, Acts Twentieth General Assembly, provides “ that whenever any person shall desire to construct any tile or other underground drain through the land of another, and he shall be unable to agree with the owner or owners of such land as to the same, he may file with the clerk of the township where said land is situated an application therefor, giving a description of the land or lands through which he may desire to construct the same.” Following this are provisions requiring the clerk to notify the towmship trustees, who are required to fix a time for hearing the application, and notice of the hearing is required to be served on the applicant and land-owner. It is then provided that, at such time, “ the trustees may fix the point or points of entrance and exit or outlet of said tile or other underground drain on said land, the general course of the same through said land, the size and depth of the same, when the same shall be constructed, how kept in repair, what connections may be made with the same, what compensation, if any, shall be made therefor, or any other questions arising in the construction of the same, and they shall reduce their finding to writing, which shall be filed with the clerk of said township, who shall record it in full in his book of records of said township; and said finding and decision shall be final,except as to the amount of damages, if any such shall be awarded.” It is further provided that “ either party may appeal to the circuit court of said county from so much of said finding and order as relates to the amount of damages: * * *
Under this statute, William Tannest made the application therein contemplated, stating that he desired-to construct two tile or underground drains through the lands of the plaintiff, describing them. The trustees fixed a day for the hearing, and the requisite notices were served, and they made and reduced to writing their finding, as required by the statute. The trustees found that “ one of said ditches is necessary for the pi’oper cultivation of said lands; that the permanent value will be increased thereby; and that it is necessary, in order to drain said lands and adjacent lands, that said tile ditches should pass through the lands of others than the ■applicant herein.” The trustees also found and directed that the drain should be constructed over the land of the plaintiff, where the same should enter his premises, the depth and size of the drain, the length thereof, and that he would sustain no damages by reason thereof. Afterwards the plaintiff caused to be issued a certiorari directed to the defendants, who are the township trustees, and in their return thereto the foregoing facts' appear. Afterwards the plaintiff appealed from the decision of the trustees to the proper court, so that both the appeal and the certiorari proceedings were pending at the same time. No motion was filed to dismiss either, nor was the pendency of one pleaded in abatement or in bar of the other. In both such proceedings a motion was filed by the plaintiff to dismiss the same, because the statute above referred to was unconstitutional, and therefore the proceedings from the beginning must be regarded as absolutely void. These motions were sustained, and the defendants appeal.
The second class of cases to which counsel have called our attention is where swamp or overflowed lands have been drained by ditches, or otherwise reclaimed, and in so doing
But it may be said that the finding of the trustees is final and conclusive, and therefore the statute is constitutional, because the trustees have found that a ditch or drain is necessary and proper for the proper cultivation of such lands; that the permanent value will be increased thereby; and that it is necessary in order to drain said lands and adjacent lands. But it seems to us that the constitutionality of a statute does not depend upon the finding of the trustees in a particular case. If the statute is unconstitutional, it is void, and no valid act can be based thereon. But the trustees have not found that any of the lands are swamp or wet, and, as we understand, the primary thought in their finding is that the proper cultivation of the lands requires that the drain be constructed. The facts upon which their conclusion is based are not in the record. “ It may be for the public benefit that all wild lands should be cultivated, all low lands drained, all unsightly places beautified, all dilapidated buildings replaced by new, because all these things tend to give an aspect of beauty, thrift and comfort to the country, and thereby to invite settlement, increase the value of the lands, and gratify
The foregoing views are in accord with and supported by Bankhead v. Brown, 25 Iowa, 540. For the reasons stated, we feel constrained to hold that the first section of chapter 188, Acts Twentieth General Assembly, is unconstitutional and void. Affirmed.
Dissenting Opinion
dissenting. — I. In my opinion, the statute referred to in the foregoing opinion, authorizing the construction of tile or other underground drains by a landowner, for draining his own land through the land of his neighbor, is not in conflict with any constitutional limitation, but was enacted in the exercise of competent legislative power. It cannot be denied that land cannot be taken from the owner for strictly private purposes; that is, no one for his own private use can take the land of another. But I insist that the statute involved in this case authorizes nothing of the kind; that it does not provide that one man may take another’s land for private use. How can it be said, when the land-owner remains in the uninterrupted possession of land, and enjoys fully all its profits, when his title is not impaired or assailed, and when no injury is done to the laud, but it is rather improved and made more valuable for cultivation by the construction of a tile drain through it, that the
II. The authority of the legislature to enact the statute in question is supported upon these considerations. The citizen holds all his own property, subject to the restriction that it shall not be used or so kept as to interfere with the fullest enjoyment by his neighbor of his property. He cannot compel his neighbor to maintain a marsh or incur great expense in draining it, when but a trifling outlay would be sufficient to construct a drain as provided by the statute in question. He is required to.permit his own property to be occupied temporarily for the purpose of preventing loss to his neighbor. I need not refer to familiar instances' wherein this doctrine is applied. It is the duty of all citizens to promote the general good of the people of the state, and it is the duty of the state to provide by law for the general welfare and prosperity. Public policy demands that the agricultural lands of the state shall be well farmed and drained, so that the utmost extent of their capability for the pi’oduction of the fruits of the earth may be realized. The state, in the exercise of its police authority, may enforce
III. A rule of the common law forbids the owners of property, real or personal, to so use or hold it that it works injury to another. The foregoing decision of the majority of the court supports unthrifty and unneighborly land-owners, who will not drain their own lands, nor permit their neighbors to drain theirs, on the selfish ground that their rights of property will thereby be involved. I am sorry that this court has invoked wholesome doctrines and correct constitutional restrictions, which, in my opinion, are • not applicable to the case, to establish a rule which will operate harshly upon the agricultural interests of the state, by retarding the development of much of our best and most fertile lands, and will put it in the power of the selfish and unthrifty to throw insurmountable obstacles in the way of good farmers who desire to beautify and fertilize their farms by turning unsightly marshes or wet lands into productive fields.
IT. But, should it be held that the land is taken by the person constructing a tile drain, in that this manner of improving lands develops the agricultural resources of the state, the great source and the wealth of our people, upon which depends, in a very great measure, our prosperity, it is a public purpose for which private property may be appropriated. While but an individual in a single case may reap the benefits which come from the profits of the improvement of his land, the whole state is indirectly benefited thereby. And, in view of the fact that so many of our people and such large quantity of our lands may be beneficially affected by such improvements made by individuals, it becomes a public purpose, in the execution of which all the people of the state are interested and largely benefited. I am clear in the opinion that, if it may be said that the lands involved in this case were taken, it is for a public purpose, which authorizes the exercise, on the part of the state, of the right
Y. The statute in question authorizes the construction of “ tile and other underground drains.” The language of the act, and the universally familiar acquaintance of our people with the uses of “tile and underground drains,” justify the conclusion that the purpose of the statute, enacted by lawmakers familiar with this language and this purpose, is to authorize the drainage of wet lands. “ Tile and other underground drains” are therefore not authorized by the law except the land be wet, and it is not to be presumed that the trustees in this case authorized the construction of the drain except upon finding that the land was wet, and for that reason the drain was required by the person invoking the action of the trustees. It would not only be absurd, but contrary to' presumptions' which we are required to exercise, to argue that this person may have desired to put in the tile, and the trustees may have authorized it, when the land was not wet in fact. The presumption arises that the trustees did ' find and adj udicate that the land was wet, and that the claim for authority to construct the drain was authorized by the facts.
YI. If the trustees erroneously found that the land was wet, when in fact it was dry, and for that reason a drain was not authorized by the statute, the law provides a< way for reviewing and correcting the erroneous decision. It may be that the trustees cannot acquire jurisdiction by finding contrary to the facts; but it is not alleged or claimed in this case that plaintiff’s land which he desired to drain is not wet.
YII. Wet lands not only retard cultivation, but are the certain source of malaria, the prolific parent of disease. This is a fact known to all men in all ages, which the law presumes without proof, and of which the courts will take judicial notice as a matter of common knowledge which nobody
In my opinion the foregoing decision is based upon the misapplication of familiar principles of the law, and the failure to recognize others equally familiar.