144 Iowa 10 | Iowa | 1909
Lead Opinion
A drainage district was established including lands in Wright and Humboldt Counties. To drain these a ditch was located along the route of a natural water course acrbss which the Mason City & Ft. Dodge Railway Company had constructed its railroad, operated at the time of the trial by the Chicago Great Western Railroad Company. The railroad grade at the crossing was seven feet above the natural surface, and, concerning an opening for the passage of water, one of plaintiff’s witnesses testified on cross-examination that “at or near” this place there was a wooden box four by five feet through' the embankment for the purpose of letting the water through, and plaintiffs introduced the return of the drainage engineer to the notice to them in pursuance of section 18, chapter 68, Acts 30th General Assembly, 1904, reciting that their engineer “agreed that the ditch could cross about two hundred and fifty feet southwest of where the company now has a wooden box and that the opening under the railroad track should be as large as a drainage 'ditch planned at that place.” Aside from this, there was no evidence concerning the character, location,' or purpose of the -opening through the embankment, or how it came to be placed where it was. The profile indicated that the proposed ditch through the right of way would be four feet wide at the bottom, with .sides sloping out one and one-half feet to each foot, in depth, seven feet deep, and therefore twenty-five feet wide at the top. The appraisers estimated the damages to plaintiffs in the excavation of the ditch through its right of way to be $400, and upon appeal to the district court this was increased to $2,200. Evidence was received on the trial tending to show the cost of a concrete and steel culvert through the embankment over the ditch and also that of a wooden bridge, and what sum of money at the rate of five percent interest per annum would be necessary “for the original construction and subsequent maintenance of the
4 same: construction of drains: damages. As we understand the briefs, there is no controversy over these propositions; the companies resting their claims on certain statutes in force at the time when these proceedings were had. Section 18, chapter 68, Acts 30th General Assembly, made it the duty of the engineer in charge of the work “to notify the railroad company by serving a written notice upon a station agent of such company or its lessee or receiver that he will meet the company at the place where the said proposed ditch, drain or water course crosses the right of way of said company, said notice fixing the time of such meeting which shall not be less than five days after the service of the same, ■ for the purpose of conferring with such railroad company in relation to the place where, and the manner and method in which such improvement shall cross such right of way.” Upon failure to agree, these matters are to be determined by the railroad commissioners. As seen, they did agree, and section 19 of the above chapter provided that “such railroad company shall within thirty days after being notified by the county auditor to construct the same and the time within which the work must be completed, proceed to construct such levee, ditch, drain or change of natural water course in accordance with the plans and specifications as shown by the plat and profile of the engineer. If such railroad company shall fail, neglect or refuse to do so within the time fixed in such notice, the auditor shall cause the work to be done under the supervision of the engineer in charge of the improvement and the railroad company shall be liable for the charge thereof, to be collected by the county in any court having jurisdiction, All other proceedings in relation to railroads shall be the same as provided for individual property owners in
In construing this statute, the obligation of the railroad company, but for its conditions, to construct a culvert or bridge over this. ditch at its own expense is not to be ignored. Its location and character had been agreed upon, and it is to be assumed to be such as the successful drainage of the district required. But for the clause in the statute “that the cost of constructing the improvement across the right of way shall be considered as an element of damages” there would be no basis for the claim of the companies for compensation. To what, then, do the words “the improvement” refer ? Manifestly “the ditch.” It is mentioned as the improvement throughout the drainage statutes, and in section 18, chapter 68, the meeting of the drainage engineer and that of the company is “for the purpose of conferring with such railroad company in relation to the place where and the manner and method in which the improvement shall cross such right of way.” If they fail to agree, then the railroad commissioners are to “determine the place where and the course, direction, and manner in which such ditch, drain or water course shall cross such right of way.” The company is required by the next section to construct “such levee, ditch, drain or change of natural water course in accordance with the plans and specifications as shown by «the plat and profile of the engineer.” The character of the culvert or bridge
As the triál court ruled otherwise, its order fixing the amount of damages is reversed.
Dissenting Opinion
(dissenting). — The question in this case is solely one of statutory construction. There is no disputing the fact that the railway company had constructed a solid embankment over and across what is termed in the opinion a natural water course, and was- taking care of the water which originally flowed in this so-called channel to the satisfaction of all parties interested by a culvert which was at least four by five feet in size,’ some two. hundred and fifty feet distant from the so-called water course. The drainage ditch, as planned, did not cross where the company had located its culvert and where it was taking care of all the water which naturally flowed therein, but at a place two hundred and fifty feet distant, which place was agreed upon by the engineer in charge of the work and the railway company. It is also shown that the manner and method in which the improvements should cross the right of way was agreed to, and that this contemplated, as it must have done, the construction of a bridge across the excavation which was necessitated by the establishment of the drainage district, and for no other reason. Having taken care of the natural flow of water at another place in its right of way, presumably with the consent of all parties in interest, for no one seems to
Going now to the construction of the statute which was in force when this action was brought, we find that it is provided that whenever the board of supervisors shall have established any drainage district or change of any natural water course, and the ditch, drain, or water course crosses the right of way of any railway company, such railway company shall proceed to ’construct such ditch, drain, or change of natural water course in accordance
As I read the majority opinion, the decisions from the Supreme Court of Illinois and from the Supreme Court of the United States are cited, not as applicable to the case now before us, but as furnishing a guide to the interpretation of the statute now before us for construction, with the thought that the legislature. passing the statute in question must have had these decisions in mind when it passed the act. The fundamental difficulty with this position is that the act was passed and approved April 29, 1904, while the decision of the Illinois court was not handed down until October 24, 1904, and the decision in the Supreme Court of the United States was not made until March 5, 1906. If it be thought that the Legislature anticipated the decision of the Supreme Court of the United States and knew the law, although it had not been pronounced by the supreme tribunal, it is enough to say in answer that four out of nine judges of that court did not know the law because they dissent from the opinion upon which the majority seem to place some reliance. It must be remembered, too, that the Supreme Court of the United States held that while the expense attendant upon the removal of the present bridge and culvert and the timbers and stone placed by the company in the creek, as well as the expense of the erection of any new bridge which the company may elect to.construct in order to conform to the 'plan of the commissioners, should be borne by the railway company, the expense attendant upon the removal of the soil in order to enlarge, deepen and widen the channel must be borne by the drainage district. Again, it must not be forgotten that in the case of Railway v. Illinois there was a bridge across a natural stream at the exact place where the drainage ditch was
Going back now to the matter of legislative construction, the Thirty-Second General Assembly, which convened after the decisions referred to in the majority opinion, concluded that it would change the law so as to comply with the rules announced in those cases and also provide for just such a situation as we find in this case. If the majority be correct in their interpretation of the acts of the Thirtieth General Assembly, there was absolutely no need for any change in that law, and the act of the Thirty-Second General Assembly was of "no purpose. It is a fundamental rule that in the construction of statutes and in arriving at the legislative intent that legislative construction should be looked to in determining the intent of that body. It will be noticed that in quoting the section and chapter of the acts of the Thirty-Second General Assembly the majority adopt the view therein expressed almost exactly as stated. The act of the Thirtieth General Assembly must have meant something else, or there would have been no need for the subsequent enactment, and that the Legislature believed that my construction of the Thirtieth General Assembly is correct I have no doubt; for we must assume that there was some mis
Going now to Acts 32d General Assembly, 1907, chapter 95, section 3, we find that sections 18 and 19 of chapter 68 of the acts of the Thirteenth General Assembly were amended so as to read: ' “Whenever the board of supervisors shall have established any drainage district or change of any natural water course and the ditch, drain or water course crosses the right of way of any railroad company, the county auditor shall cause notice to be served upon the railway company directing the company to construct such improvement according to the plans and specifications - at the place designated, across its right of way, and to build and' construct, or rebuild and reconstruct the necessary culvert or bridge where any ditch, drain or water course crosses its right of way, within thirty days, and upon receiving such notice, it shall be the duty of the railway company to construct the improvement across its right of way according to the plans and specifications, and to huild and construct, or rebuild and reconstruct the necessary culvert or bridge. . . . and the cost of constructing the improvement across the right of way of such company, not including the cost of building and constructing or rebuilding and reconstructing any necessary culvert or bridge, shall be considered as an element of such company’s damages by the appraisers thereof; and the cost ... of any necessary culvert or bridge shall be borne by such railway company without reimbursement therefor.” By section 1 of chapter 95 it is provided that “the ditches and drains herein provided for shall be surveyed and located along a general course of natural drainage of the lands having due regard for straightening and shortening of such natural streams, water courses, and course of natural drainage. Whenever any such ditch or drain crosses any railway right of way it shall be located at the place of the natural way across
The majority refer to- section 2021 of the Code. ' It will be noticed that it simply requires of a railway company that it maintain and keep in good repair all bridges which it may construct for the purpose of enabling its railway to pass over any water course. This surely does not mean that it must build and keep in repair two bridges for the same water course. If it constructs one so as to take care of the water to the satisfaction of ’both upper and lower proprietors, it has done all that can be required of it. Having undertaken to do this, it is not for some petitioners for a drainage district to insist that it build another bridge for the' purpose of enabling it to cross over ■a ditch to accommodate the water collected for the purpose of drainage. If the parties had agreed upon a ditch being constructed through the channel where the culvert was when, proceedings were instituted, we would, in my opin
I feel the duty of dissenting in this case because of the fact that, if the majority are correct, there never can be allowed to an individual landowner anything by way of compensation for the construction of bridges across ditches running through agricultural or farm lands, even though those bridges ..be necessary to afford access from one part of the lands to another. If the majority are correct, then the only matter which may be considered in fixing the damages, no matter who the claimant, is the expense of digging the ditch and constructing it according to the plans of the engineer; and, even if these plans show the necessity for bridges or culverts, nothing can ever be allowed therefor. If this be the construction, then I have very grave doubts about the constitutionality of the law. I may say in conclusion that I doubt very much whether the question decided by the majority is presented by appellant’s counsel. But, however this may be, I can
For these reasons, I respectfully dissent from the conclusions of the majority.
Concurrence Opinion
I concur in the dissent of Mr. Justice Deemer.