Hatch, Holbrook & Co. v. Pottawattamie Co.

43 Iowa 442 | Iowa | 1876

•Rothrook, J.

I. The land in question was conveyed to the Railroad Company in 1860, and by section 988 of the Revision the grantee expressly released-the State, and the county in which the land is situated from all liability for reclaiming the same. The plaintiff's hold their title from the Railroad Company, and took the land subject to the same condition. The act of 1862, p. 78, in which there is a provision that no county shall be released from its obligation to make the necessary drains and levels contemplated by the act of Congress, does not aid the plaintiffs. Their grantor took title before this act was passed, and with the express stipulation that the county should be released. And this court has held in Barrett v. Brooks, 21 Iowa, 144, and in Keltner v. Story County, 28 Iowa, 35, that the grantee from the county cannot enforce the obligation to ditch or reclaim swamp lands.

II. Plaintiffs allege that part of the land which was taxed by the county was not benefitted by the ditch. No question is made on this in the argument. The petition admits that the county in all its proceedings acted in strict conformity to law. We are inclined to think that, where the board of supervisors make an equitable apportionment of the cost of a ditch and levy the tax, that an original petition for injunction to restrain its collection is not the proper remedy, when the only ground of complaint is that the land is not benefited. See Macklot v. City of Davenport, 17 Iowa, 379; Buell v. Ball, 20 Ib., 282. However that may be, as the plaintiffs have expressly averred that the county was “regular in all its proceedings,” and as counsel make no point on this question in argument, we will assume that the allegation of regularity covers every, act necessary to create a liability, including the determination of the proper lands to be assessed.

III. It is claimed in argument that the act authorizing the counties to construct ditches and assess the cost upon adjacent lands benefited thereby is unconstitutional. Code, Sec. 1207, et seq. That statutes similar to the. one in question have been uniformly held valid, see Cooley’s Const. Limitations, p. 510, et seq., and Dillon on Municipal Corp., Sec. 481, et seq.

Affirmed.