142 Iowa 72 | Iowa | 1909
The plaintiff herein, P. C. Hartshorn, with others, petitioned the board of supervisors of Wright County for the establishment of a drainage district covering certain described territory through which it was proposed that an open ditch be constructed draining in a southerly direction. Other petitions were thereafter presented for the construction of certain laterals to the proposed ditch. An engineer appointed for that purpose made a survey of the district finding in favor of its construction and of the establishment of the district as ashed by the petitioners, and under date of September 20, 1906,
Going back now to the power of the board of supervisors, it will be observed that it must examine the petition for the district, both as to form and substance, which may be amended at any time before final action; may view the premises and dismiss the proceedings because not conducive to public health, convenience or welfare, or of public benefit or utility; or may locate or establish the same according to the recommendations of the engineer; or may order the engineer to make a further examination and report, and further proceedings shall be continued to another date. Section 1989a5, Code Supp. 1907. By section 1989a2 it is provided that the board shall appoint an engineer who shall examine the lands, and survey and locate such drains and ditches. He is also required to make a return to the county auditor showing the starting point, route and termini of the ditch or drain, together with a plat and profile showing the ditches, drains, etc., the course and length thereof, elevations, etc., the boundaries of the district, etc. It is then provided in section 1989a3-that the board shall examine the plan and return of the engineer, and either approve or disapprove of the same, and, if it disapproves thereof, it shall direct the engineer or another selected by them to make another plan
It is said, however, that the district court had power to reverse the action of the board, and that to this extent the decree should be upheld. Of course, the court had such power; but, as said in the Temple case, supra, the court’ should be very reluctant to interfere with the action of the board upon appeal, and should do so only upon clear, satisfactory, and convincing evidence that the ditch should be established. In this case the court affirmed the action of the board in so far as the board was authorized to act, and reversed it only in so far as it established a new district for which there was no petition by plaintiff, and no plan recommended by a competent engineer. This was an affirmance of the action of the board, and that should have ended the matter upon the proceedings then before it. New petitions may be presented by interveners, and the board may be called upon to have a resurvey of the proposed district, and it may be that the board of supervisors may establish a plan recommended by an engineer upon such petition. But it is not proper for the district court to establish the same in the absence of the essential prerequisites thereto. Moreover, it must be remembered
The petition must be sustained, and the decree of the district court is annulled.