162 Iowa 364 | Iowa | 1913
The facts are substantially that on March 10, 1910, there was filed with the county auditors of the two
The commission further found that the lands benefited would be 15,774 acres in Muscatine county and 14,208 acres in Louisa county, or a total of 29,982; that the acreage liable to be affected by the backwater in Muscatine slough during seasons of protracted high water in the Mississippi' river, render present conditions, is approximately 5,539 acres in Muscatine county and 10,352 in Louisa county. Objections were filed by different landowners and at different times; some of these objections were filed before the board as early as April and May, 1910.
Evidence was offered and hearings had before the board, and the district was established October 25, 1911, as recommended by the engineer, and was named the Muscatine-Louisa county district No. 13. A time was fixed for filing claims for damages; but the record does not show how many or the amount of these, and it is stated there is no controversy as to them. Other proceedings were had and orders made which are not now material.
A contour line, three feet above high water, was used as a basis for the boundary line of that part of the district north of the Hoffman levee, and each forty-acre tract, any portion of which contained land lower than this three-foot
The land between Muscatine slough and the river is called Muscatine Island. The island varies in width; it is about four and one-half miles wide at its widest part, near the town of Fruitland, narrowing to about a mile at its lower end
The lands in the district will be benefited more or less, depending upon the elevation and location of the various tracts. The width of the district varies from one and one-half to four miles. The western boundary extends nearly to the Mississippi bluffs, which extend in a southern and southeasterly direction until they merge with the bluffs of the Iowa river. The eastern boundary of the district may be said to be the banks proper of the Mississippi river, except at the north portion, where, for a distance of ten or twelve miles, the sand ridges or higher lands extend along the river banks. These higher lands just referred to are not included in the district. The soil along the bed of the Muscatine slough is a rich, black deposit, varying in extent and depth. The soil' west of the slough is similar. The land in the southern part
The levees before mentioned have been of benefit to the landowners, but in times of high water do not afford adequate protection of the lands which they inclose. When the Mississippi river is high, the outlet pipes in the levees must be closed, and, there being no outlet for the water within the district, it rises to such an extent as to render a portion of the lands in the upper district unsuitable for cultivation. There is some conflict in the evidence as to how far north the backwater will reach. Some of the witnesses say it extends to the Muscatine city limits, others think not farther than to Yail’s land, which is five or six miles north of the Hoffman levee. There are swales north of Yail’s land, where the elevation, is lower than at Yail’s.
The extreme high-water mark of the Mississippi is something more than eighteen feet; when a stage of thirteen feet is reached, lands inside the levees are flooded. When the waters recede, lakes and ponds are left here and there over the district. The lower part of the district, south of Port Louisa, containing about 6,000 acres, is also reclaimed by the proposed improvement. Only a small part of this land can now be cultivated even in dry seasons. While but forty of the individual landowners in the district have signed the petition for the improvement, about seventy-five per cent of the acreage favor drainage.
Several years ago drainage district No. 3 was organized. This district included low-land within the city limits of Muscatine, and extended in a southwesterly direction to the county line. The proposed district No. 13 includes so much of No. 3 as is south of and outside the city limits. It is not objected that the boards did not have authority to include a part of No. 3; but the objections are that the lowlands in South Muscatine will be benefited and should be included in 13, and that the lands in No. 3 outside the city are not benefited and should not be included. Numerous objections were filed before the board and in the district court, among them that the drainage law is unconstitutional; that the lands of the objectors were all inclosed by levees, and had been so inclosed more than ten years; that the landowners outside of this district should have no voice in determining the improvements to be made within the district; because the notice to landowners was only by publication, and because the board did not have before them, when they took action, the report of the commissioners and engineer, as required by law. As to the last, it appears that this report was before the board. The other points just referred to are not argued, doubtless because some, if not all, of them had been heretofore determined. The trial court found that the district would not be for the public bene
It is also contended that the trial court correctly decided the question under the evidence. Appellant’s contention at this point is that the action of the board is legislative in its character; but even if this is not so that the finding was contrary to the evidence. "We think the rule of the Cheadle case, supra, and like cases in equity, ought not to apply so strongly in a case of this character as in the ordinary action triable de novo. It is true that the trial court saw and heard the witnesses, and is in a better position than we can be to determine the conflict in the evidence. But in this case, and usually in this class of eases, the evidence of the witnesses is a description of the character of the land, and the soil, swales, ponds, water courses, ditches,
Gathered from our prior eases, the holdings appear to be that the act of the board of supervisors in establishing the district is subject to review, but is partly judicial and partly in the nature of a legislative function. Temple v. Hamilton
As applied to this case, then, the appellants, who were the objectors below, had the burden of showing that the proposed district was not a work of public utility, and that the cost is excessive and a greater burden than should be borne by the lands included therein. At least appellees cannot and do not claim the decisions to be more favorable to them than this. Did they so show ?
As we have seen, the report of the engineer and the findings of the board are entitled to weight, and the district court should have been, and this court will be, reluctant to annul the order of the board.
The board of supervisors so found in the order establishing the district. It seems to us the character of the lands, as stated generally in the statement of facts, is enough in itself to show that these lands are such as to make this improvement one of public benefit. The fact is there is but little if any evidence that the district should not be established. Some of the objectors give it as their opinion that their lands will not be benefited, and for that reason they should not be included in the district, yet on cross-examination each one admits, or the other evidence shows, that on substantially every tract there is a slash, pond, or low place. It would not be a sufficient reason for setting aside the establishment of the whole district that some lands are not benefited as much as others. Undoubtedly some of these lands will be benefited more than others, and some of the landowners will be benefited more than others. This is often so in cases of public improvements; but this is not a ground for doing away with such projects. These matters will be controlled by the assessments.
We have not taken the space to detail the evidence. We have already described the situation in a general way. This further may be said, that substantially all these lands are subject to overflow. Some of the land is entirely useless; much of that which is under cultivation is wet and sour at
The elevation of the land is not the sole test.- Some of the objectors, testifying as witnesses, seem to have gone on the theory that, having rid their lands of the surface water by discharging it upon their neighbors’ land, they would not be' benefited by the proposed system, and should not be included in the district. But the proposed district is a comprehensive scheme to relieve all this large territory. These neighbors may need relief. If objectors are also benefited, they should contribute to the expense of draining the district. Drainage District No. 3, 146 Iowa, 564, 575.
The evidence shows that the project will be successful. Similar undertakings have been. There is some evidence to the contrary by witnesses whose lands are a considerable distance from the drainage ditches, and who have not tiled or connected up their lands. But there is no serious conflict on this proposition.
Appellees do not seriously contend that a drainage district is not needed. They, as witnesses, admitted that it is needed, but only claim that their lands would not be benefited. If this was true, they could be released. Code Supp. Section 1989-a46. This would not justify setting aside the order as
Not more than two or three of appellees’ witnesses gave their opinion that it would be excessive as to the entire district. For the most part appellees’ witnesses gave testimony that it would be excessive as to their own lands, and based it on the assumption that all the lands would be taxed $10 or $11 an acre for the construction of the ditches and pumping station, and fifty or sixty .cents an acre for maintenance of the pumping plant. 'The witnesses so testifying were largely those on sandy lands in the northern part of the district, and the evidence was limited to such lands. Appellees did not undertake to show by any of their witnesses that the cost of the work and maintenance would be a burden if properly distributed over the district according to benefits. The engineer testified he could not give the estimated cost of the construction or maintenance for each forty acres, because the benefits to each tract would have to be determined on the basis from 1 to 100 per cent, of benefit before this could be determined.
As before stated, the cost of construction and mainte
It will be well, perhaps, to here notice some of the dates which are material, and then take up the different acts of the Legislature bearing on the question. The petition for this improvement was filed March 7,1910; a bond was filed on the same date. March 11, 1910, the boards met in joint session; the bond was approved and two commissioners appointed. April 4, 1910, at a meeting of the joint board another commissioner was appointed to fill a vacancy caused by sickness. The commission met April 14, 1910, and appointed a civil-engineer as the third member. This commission reported on
Prior to the passage of the drainage act by the Thirtieth General Assembly (chapter 68), there were already different systems of drainage laws in the statutes; one being title 10, chapter 2, of the Code. On April 13, 1904, chapter 69, Acts of 30th G. A., was passed, and it provides: “The board of supervisors of any county or counties in the state in which a drainage district has been or may hereafter be organized in the manner provided in chapter 2 of title X of the Code may provide for the establishment and maintenance of a pumping station,” etc. This is the act requiring the signatures of 50
• In 1906, by chapter 84, Acts of 31st General Assembly, chapter 68 of the Thirtieth General Assembly was amended, aid section 6 added, which provides that section 48 of the act is amended by inserting immediately following the word “as” and before the word “additional” in the second line of said section the words “and independent procedure.” ('Evidently “and” should be “an.”) If chapter 68 was not an independent procedure, it became so by the act of the Thirty-First General Assembly, and was such when appellants filed their petition in 1910, and whatever amendment had been made by chapter 69 of the Thirtieth General Assembly has nothing to do with chapter 68; chapter 69 being an amendment to chapter 2, title 10, of the Code.
Afterwards, and in 1907, the Thirty-Second General Assembly provided for pumping stations. This amendment has been heretofore referred to, and is as follows: “The board of supervisors of any county or counties in the state in which a drainage or levee district has been or may hereafter be organized as provided in this act may provide as a part of said drainage system for the establishment and maintenance of a pumping station or stations, when and where the same may be necessary to secure a proper outlet for the drainage of the land comprising the said district and the cost of construction and maintenance of said pumping station or stations shall be levied upon and collected from the lands in the drainage or levee district in the same manner as provided for
As we have already shown, when the petition was filed in this case the only requirement, so far as the number of petitioners is concerned, was as the law then appeared in section 1989-a2, that is, “one or more.” April 20, 1911, after these proceedings had been commenced, the Thirty-Fourth General Assembly by chapter 87 amended section 1989-a49, providing that not less than one-third of the owners should sign a petition; but a saving clause was added. Section 8 of said act is as follows: “Nothing-contained in this act shall be held to affect pending litigation or any proceedings heretofore had under the laws hereby amended.” This amended the act under which appellants had initiated their action to establish this drainage district and pumping station. The important thing in these proceedings, so far as the point now being considered is concerned, was the filing of the petition. At the time it was filed it was sufficient as to the number of signatures. The proceedings had been pending more than a year, and were during that time being contested and litigated by appellees. In our opinion, the rights of the board of supervisors and petitioners were saved by this clause, and that their rights in regard to the pumping station are the same as though the act of the Thirty-Fourth General Assembly had not been passed. In March, 1910, when plaintiffs filed their petition for the district and pumping station, one method of commencing proceedings would have been under chapter 2, title 10, of the Code, and in that case certain things were required, or proceedings could have been commenced under section 1989-al, and following sections, as amended by the law of 1907, heretofore referred to. Under the last method one or more owners could petition for a district, which would include a pumping station, as a part of the drainage system, without regard to chapter 69, Acts of 30th G. A.
It has been recently held that proceedings may be initiated under any of the different methods. Lyon v. Board, 155
In this case the pumping station is a necessity. To establish a pumping station without authority to maintain it would be a useless proceeding. The statute provides that drainage laws shall be liberally construed to promote drainage. It is contended by appellees that the saving clause referred to does not cover this case, because, as they say, there was no litigation to save, and because the words ‘‘ any proceedings heretofore had” mean any completed act or order which the board had made. This construction would be too narrow. Litigation is a judicial controversy. Appellees were contesting the matter before the joint boards, a tribunal whose functions in this matter were in part judicial. We see no reason to single
Nor would that be a reason for excluding the lands in No. 3 south of the city limits, if such lands were benefited. They can only be assessed according to the benefits to them, and when the assessment is made the commissioners must take into consideration the value of the old improvement, and allow a credit to the parties owning the old improvement as their interests may appear. Code Supp. Section 1989-a25; Kelley v. District, 158 Iowa, 735.
For the reasons given, it is our opinion that the trial court erred in annulling the action of the board. The cause is reversed, and a decree will be entered in the district court, or in this court, at the election of appellants, confirming the action of the joint board in establishing the district, and the pumping station, and its maintenance. Reversed.