Gish v. Castner-Williams & Askland Drainage District

136 Iowa 155 | Iowa | 1907

Deemer, J.

1. Drainage: appeal. The record shows that Hamilton county alone appeared in the district court pursuant to the appeal from the action of the board of supervisors in assessing plaintiff’s damages, and that it alone contested the case upon appeal. The Castner-Williáms and Ashland district was not represented, nor did it make any issue with the plaintiff over the amount to be awarded. The record recites in one place that the district served notice of appeal and in another that defendants served notice of appeal to this court. In so far as Hamilton county is concerned, it bad no right of áppeal, as it has no such interest in the controversy as entitled it to do so. Yockey v. Woodbury County, 130 Iowa, 412.

2. Same: parties. The drainage district is not su.ch an legal entity .as. is known to or recognized by law as a proper party to adversary proceedings. In the case just cited it is said that the petitioners for the construction of the ditch, or those whose lands are' subjected in any way to a heavier assessment on account of failure to assess other lands, may be such parties. See, also, Henderson v. Calhoun County, 129 Iowa, 119.

3. Same. None of the parties who were interested in the amount of the award — that is to say, none of the parties whose lands were to be assessed to pay the expenses of the improvement •— served notice of appeal, and under the prior holdings of this court there is nothing before us for consideration. We may say, however, that we have examined the question argued by counsel, and find no prejudicial error.

4. Same: measure of damages. The point most relied upon is that the trial court erred in allowing witnesses to fix the damages at the time of trial rather than at the time when the drainage district -was established, or ordered to be established. Appellants’ contention is based upon the rule applicable to ordinary condemnation proceedings. But such rule is not applicáble here, for the reason that -by section 7, Acts 30th General Assembly, the amount of damages is to be paid or secured to be paid upon such terms and conditions as the county auditor may deem just and proper, and until that is done the board can take no action toward carrying out the improvements. In. ordinary condemnation proceedings, the ihoney must be paid to the sheriff before the party condemning may enter upon- or appropriate the land, while in drainage proceedings the time of payment is indefinite depending largely upon the action of the county auditor. Moreover, the report of the appraisers was filed September 26, 1905, and tbe case was tried in tbe district court, May 12, 1906. There is no showing of any increase in tbe value of tbe land between these two dates, and they are not so remote as that any substantial. change in value will be presumed. Tbe damages should undoubtedly be assessed at tbe difference between tbe value of tbe land immediately before and immediately after tbe construction of tbe ditch. As supporting these views see, Richardson v. Webster City, 111 Iowa, 427.

No error appears, but, as tbe case is not properly before us, we must for tbe reasons disclosed in tbe first division of tbe opinion dismiss it.

It is therefore dismissed.