151 Iowa 182 | Iowa | 1911
The grounds of objection urged by the appellants before the board of supervisors were somewhat indefinite in character; but the objections urged on this appeal which may be considered to have been sufficiently raided before the board and on appeal before the district court are that the cost was excessive, resulting in a greater burden than should be properly borne by the land benefited; that the improvement was ordered without the recommendation of an engineer; that the action of the board as properly construed involved the construction of a ditch for only a small portion of the distance for which the im
As these objections relate principally to the sufficiency of the engineer’s report and findings which are by statute made a necessary basis for the action of the board, we set out the provisions on that subject which are a part of section 2, chapter 68, Acts of the Thirtieth General Assembly, as amended by section 1, chapter 94, of the Acts of the Thirty-Second General Assembly (Code Supplement 1907, section 1989-a2); these being the statutory provisions under which this proceeding was prosecuted before the board. After providing for a petition and the appointment by the .board of a disinterested and competent engineer who is to proceed to examine the lands described in the petition or which would be benefited by the improvement and “survey and locate such drains, ditch or ditches, improvement or improvements, as may be practicable and feasible to carry out the purpose of the petition and which are a public benefit or utility or conducive to public health, convenience, or welfare,” it is further pro
It is contended, however, that the return of the engineer did not show the method or expense of connecting the small ditches and watercourses, which at present empty into the river, with the proposed ditch, and that therefore the members of the board did not have the necessary information to enable them to judge as to the practicability of the entire enterprise. The proposed ditch is deeper than the channel of the river, and each portion of the river will empty into it at some point. When the ditch is constructed, there will still be an outlet into the ditch for all the water coming from lateral ditches and streams now existing. It is argued that in time the old channel of the river will be filled up. However this may be, there is nothing in the record to indicate and nothing in the general knowledge possessed by the members of this court to suggest that the water from collateral streams and ditches will not keep open for itself and in accordance with the laws of nature an outlet into the proposed ditch. We think this objection to be wholly speculative and to have no material bearing upon the practicability of the proposed improvement for the purposes for which it is to be made nor upon the question as to its substantial cost.
Much reliance is placed for appellants on the opinion handed down by this court in the case of Focht v. Board of Supervisors, In re Nishnabotna River Improvement District, 145 Iowa, 130; but, as said in that opinion as to another case: “In arriving at the doctrine announced in any case, we must always have in mind the particular facts in regard to that case, the arguments used, and the conclusion reached. Not every statement found in a judicial opinion is to be regarded as the law of the case.
What is said in Zinser v. Board of Supervisors, 137 Iowa, 660, already commented upon,-with respect to the necessity of a report by a competent engineer, has reference to the land upon which assessment is to be made in accordance with the benefits. Indeed, that was a case relating to the establishment of the boundaries of the district, and the determination of the question whether the lands included in the district were properly so included, and not to the question whether the report of the engineer as to the proposed improvement was sufficiently definite to authorize its establishment. On this ground the case is clearly distinguishable from the one before us, for what is said therein as to the necessity for an engineer’s report is without application to the present case.
The case of Hartshorn v. District Court, 142 Iowa, 72, is subject to the same explanation. In that case the lower court was reversed in establishing a district not recommended by the engineer and ordering an improvement in accordance with a plan which the engineer had not recommended. It was the efficiency of the proposed district and improvement as an engineering enterprise as to
We can readily agree that if the engineer had recommended a ditch of a certain capacity as necessary for the purpose, the board could not have ordered the construction of a ditch of less capacity; but we see no reason for holding that if the board believed in the exercise of its reasonable judgment and in the light of the information available that a larger ditch would be mo.re effective, it might not order the improvement at an increased expense, provided the increased expense would, not make the enterprise a greater burden than should be borne by the land in view of the benefits to result.
We reach the conclusion that the objections made for appellants to the action of the lower court in affirming the proceedings of the board of supervisors are not well taken, and the decree is affirmed.