341 N.W. 29 | Iowa | 1932
Drainage District No. 2 in Pottawattamie County was established in 1903 and the improvement completed in 1907. The area of the district comprised the certain bottom lands lying upon the banks of the Missouri River and between such river and the so-called "hill country," which rises abruptly from the lower lands, four or five miles distant from the river. Through this "hill country" flowed Pigeon Creek toward the Missouri River. Its watershed was highly elevated as compared with the lowlands upon the river. This elevation extended as high as a hundred feet. The fall of Pigeon Creek was as high as eight feet to the mile as it flowed through the elevated country. The course of this creek followed an indefinite course across the lowlands to the Missouri River. More detailed description may be found in Mayne v. Board of Supervisors,
Pursuant to previous contracts let therefor, certain improvements in the vicinity of the outlet of Pigeon Creek were made in 1924 and 1925 at a cost of more than $40,000. Proceedings were had before the Board of Supervisors whereby the landowners in District No. 2 sought to have a portion of this expense charged to District No. 8. Their application to that end was denied by the Board of Supervisors; and on appeal to the district court, was denied there. On appeal to this court a reversal was had and a distribution ordered. The pertinency of this reference will later appear.
In 1927 further expenditures were incurred by District No. 2 in the vicinity of the outlet and wholly within the area of Subdistrict No. 3. The plaintiffs-landowners in District No. 2 seek in this proceeding to apportion a part of the costs incurred in 1927 and to have a part thereof charged to District No. 8. At this point the case divides itself into two branches, which we will consider separately.
I. Up to this point we have treated the proceeding in the district court as an appeal from an order of the Board of Supervisors. It was not such in fact. The petition averred that the question of the liability of District No. 8 was adjudicated by our decision in the case of Mayne v. Board of Supervisors,
"The determination of this case turns wholly upon the construction to be placed upon the last clause of Section 7563 of the Code, which reads as follows:"
It follows that the former case was neither an adjudication of, nor a precedent for, the decision of the present case. If we should confine ourselves strictly to the plaintiffs' pleading, the case would necessarily end here. But the parties have voluntarily litigated their real controversy, and we will conform ourselves to this mutual attitude of the litigants, and pass upon the questions discussed by them.
II. Under the previous statute, Section 1989-a24, the distribution of costs was to be made in proportion to the volume of water cast upon the outlet by the respective districts. It was upon this basis that the commission made its report to the Board of Supervisors in obedience to the order of this court in the former case (Mayne v. Board of Supervisors,
"7563. Improvement of common outlet. When two or more drainage districts outlet into the same ditch, drain, or natural watercourse and the board determines that it is necessary to clean out, deepen, enlarge, extend, or straighten said ditch, drain, or natural watercourse in order to expeditiously carry off the combined waters of such districts, the board may proceed as provided in the two preceding sections. Each district shall be assessed for the cost of such work in proportion to the benefits derived."
This section is predicated upon the procedure provided in Sections 7561 and 7562. No proceedings were had under such sections as relating to the improvement of 1927. Preliminary to such improvement, no right was asserted as against District No. 8. The improvement was constructed without notice to, or consultation with, District No. 8 or with its landowners. The method adopted for bringing this item to the attention of the commissioners is not disclosed in appellants' abstract, but is disclosed inferentially only in the briefs. After the reversal of the former case in this court, and *225
the remand thereof to the district court, the Board of Supervisors proceeded to perform the mandate of our reversing order and appointed the commissioners accordingly. The commissioners considered all the reported cost involved in that action and apportioned the same and reported accordingly. That report was approved by the Board of Supervisors and no complaint is made thereof by the appellants. In such report, however, it was made to appear that the appellants were claiming an additional sum of $4,389.41 for improvements made in 1927. Without questioning the regularity of the procedure or its own jurisdiction, it (the commission) reported fully on such item to the effect that no benefit accrued from that improvement to District No. 8. The Board of Supervisors approved the report intoto and the district court confirmed the same on appeal. It appears without dispute that the improvements under consideration consisted of an enlargement of the levees previously made pursuant to the organization of Subdistrict No. 3. Subdistrict No. 3 purported to be organized solely for the purpose of defense against the overflow of the Missouri River. Since the construction of the original levees in 1920 large accretions had attached to these lands of District No. 2, which bordered on the river. The levee work done in 1927 was not only confined to Subdistrict No. 2, but it was made for the most part upon the accretion lands. In the former case,
The judgment of the district court is accordingly — Affirmed.
All justices except Justice Grimm concur.