187 Iowa 625 | Iowa | 1919
Counsel for appellants in argument say that there was no pretense or claim that there was a substantial compliance with the terms of the contract. In this they are clearly in error. The burden of their argument is really that the deviations from the contract have destroyed 33 1/3 per cent of the efficiency of the ditch, and they say that an efficiency of 66 2/3 per cent is hot a substantial compliance with the contract. They base these figures largely on the testimony of their civil engineer, who testified as to examinations made and elevations taken by him. He also testified to certain back falls he claims to have found, which reduce the capacity of a tile and impede the velocity of the water and reduce the efficiency; and testifies that, in places, the tile was not laid to grade, and that, by reason of the back falls and the failure to lay the tile to grade, there was a loss of 33 1/3 per cent in efficiency.
It appears that this witness made the examination in three hours or less; that some of the elevations taken by him were by sticking a rod down through the dirt to the top of the tile. His testimony in regard to back falls is based, to a considerable extent, upon elevations so secured. The testimony shows that tile vary in dimensions, and that not all are round. There is evidence that this is not an accurate way of determining a grade line. Testimony of this witness and other engineers is that a certain amount of variation is always allowed; and, according to the weight of the testimony, the variation in the grade found here is not greater than such allowance. Furthermore, it appears that the testimony of this witness as to back falls and variations was, in part at least, from an examination of the work made by him before it was relaid. At any rate,
Some members of the board were used by plaintiffs as their witnesses, as to their purposes and intentions in regard to approving the report of the engineer. In connection with the matter of repairs, and relaying of Branch C of the drainage system in question, which Branch. C runs through the Monter land, a brief statement of the situation should be made. Branch C was 7,936 feet in length, across prairie land; 1,876 feet of this branch is on the Monter land; and 1,400 feet of it was repaired or relaid. Joint Drainage District No. 178 was duly established by the boards of Boone and Webster Counties. The ditch was located in both counties, and plaintiffs are the owners of lands in the district. The district seems to have been established in 1914, and it was constructed in 1916. There is no open work. The tiles run from 14 to 18 inches in diameter. The Monters have a half dozen connections, and their tile is from 5 to 8 inches in diameter. The contract was originally let to one Oleson, who defaulted in his work, and his bondsmen entered upon the attempted completion of the work. One of the plaintiffs testified that he called the attention of a member of the board to the fact that the water would not run out, and that there must be something wrong; that he told Thompson, who was the engineer then in charge, that the joints of the tile were.open. On October 20, 1916, one Chambers, a civil engineer of 20 years’ experience, was appointed, and, under the direction of the boards, examined the work with reference to the pipe, the joints, and the laying conditions. He was familiar with
This is the substance of the argument. There was some
There is a suggestion by appellants that, because one of the plaintiffs threatened a member of one of the boards with personal violence, the raise in plaintiffs’ assessment was because of malice, or wrong motive. This is emphatically denied by the member in question, who testifies that the assessments of all the landowners were made on the merits, and after an examination of the premises. We see nothing to indicate bad faith, and no reason for interfering with the assessment. The judgments of the district court are — Affirmed.