| Iowa | Jun 24, 1924
— -The issues in this case arise on the objections filed by the appellant with the board of supervisors of Shelby County, Iowa,' acting as a drainage board in Drainage District No. 10 in said county, to the assessments on lands owned by the appellant within the said district. The land within the district comprised 13,000 acres, or 325 forty-acre tracts. The drainage ditch was 23 miles in length. The primary grounds for objection to the assessments in question, and as stated by appellant in the propositions relied on for reversal, are: (1) That the assessments made against each of the tracts of land owned by appellant were excessive, and not in accordance with the actual benefits received; (2) that the assessments in question are excessive and inequitable, as compared with the assessments made on like lands in the drainage district; and (3) that excessive and inequitable levies resulted, for the reason: (a) That the commissioners who assessed benefits gave no consideration to the fitness of the land of appellant for agricultural purposes prior to the drainage construction, and (b) made no distinction between essentially swamp land and land merely subject to some occasional temporary but not highly damaging overflow, or in not taking their basic or 100 per cent 40, the 40 that was most in need of drainage to make it agriculturally productive and useful, and (c) took no levels, ran no lines, made no measurements of areas for the purpose of a proper classification of the lands involved, and did not give adequate time to the work of classification for the purpose of making said assessments.
In the instant case, the appraisers consisted of an engineer and two citizens of Shelby County. It appears that, in making the assessment, the commissioners first drove up the valley from the mouth of the ditch to its head, for the purpose of looking over the land and discussing how the various kinds of land should be classified. They began their work of assessment when they reached the commencement of the ditch. The lower lands and the land generally adjacent to the river were taken as 100 per cent land. Any 40 that was all or nearly all subject to overflow was 100 per cent land, and no deduction was made for a knoll or two which would not be covered with water during an overflow. The assessments, however, were not made solely from the standpoint of overflow, but included the benefits derived from drainage of the land resulting from' subdrainage. The commissioners made the assessments from what is termed by them a practical standpoint, and about nine days were consumed in the work. Commissioner Gingery testified:
“I didn’t look at it so much from an engineering standpoint. The land showed for itself, as a rule. We had to do the best we could. We could not go to the expense to survey generally these forties. We did not have any instruments, and did not take any levels at all, in looking over these lands. We used the plat made by Engineer Mayne. Just once in a while we consulted the elevations. We used our judgment of the-land, as we were looking upon each tract. ’ ’
After the commissioners filed their report, to which' objections had been made by appellant, the board of supervisors
The plaintiff called an expert drainage engineer as his witness, who, it is shown, took levels and readings on various parts of these lands, and made a topographical map. Three parcels of real estate belonging to plaintiff are involved in this case, which, for convenience, we will call the north 20-acre tract, the middle 40 immediately south thereof, and the south 40, immediately south of the middle 40. With,:' reference to the 20-acre tract, plaintiff’s engineer testified:
“On the east part of that 20, the Nishnabotna River cuts into it a little, cutting off a fraction of an acre, and then goes out again. What we would call low land amounts to about 2 acres. The rest of the 20 acres would be called high, and even hilly, land. ’ ’
Respecting this 20, plaintiff testified:
“It is all upland, with the exception of the very east part of it. I have been familiar with the flood conditions on that 20 acres for some time. I have never seen the time when there was more than an acre or an acre and a half, on the outside, that was under water. The tract that I have seen under water is at the east end of the 20 acres, right north and a little west of the bend of the stream. There is no overflow land in the southwest corner. I would judge that there is 18 acres or more that has never been under water. This land, except one-half acre, is in corn this year. It is a good crop, and will yield between 75 and 80 bushels per acre.”
With reference to the middle 40, plaintiff’s engineer testified :
*35 “The north half of the north 40 would almost come under the term hilly. It is quite high. It runs some 30 or 40 feet above the level of the low land. The west half of the 40, along the east side of the highway, is quite high at the northwest corner, running up as high as 20 or 25 feet or more above the general low land. As to the 20-acre tract, there are 2 acres that are low. I would not say that the rest of the' 20 acres is benefited at all, and would say that the entire 20 is 10 per cent land. The middle 40, as near as I could trace the flat ground that might be. benefited by being more quickly drained off by quick drainage, is about 50 per cent' of that 40, and I would- call it 50 per cent land. On the south 40 there is a knoll in the southeast corner that never has been flooded, two acres and a half, and there is a sloping hill on the northwest corner. I think at least 4 acres of ground is not affected in any way by high water. I figure that land 90 per cent. ’ ’
Plaintiff, Rasch, testified as to the middle 40:
“On that hill there is 15 or 16 acres of high land. There is, besides this other high land on that forty, somewhere around 5 or 6 acres, the entire length of the 40 on the west side. The river enters this 40 close to the center, north and south. The low land is in that vicinity. There is somewhere around 18 or 20 acres of low land on this 40, the lower land laying right up against the creek. During flood conditions I have seen 6 or 7 acres of this 40 under water. These floods come and go generally within 24 hours. This 40 is in crops this year, corn and oats. In other years I have grown good crops on this 40. Only once have the floods interfered with the growing of crops on this 40. There was some damage that year, in 1919.”
There is no question that the south 40 is the least desirable. It is all flat, with the exception of a knoll on the south side, in area about 2 or 3 acres. Plaintiff’s engineer testified, with respect to the south 40, that he thought at least 4 acres of ground were not affected in any way by high water, and estimated this land 90 per cent land.
We are impressed with the testimony offered by plaintiff as to the topography of the land in question. It is convincing, and is not seriously contradicted. We do not feel that the commissioners availed themselves sufficiently of the means of accur
■ As to the two upper tracts, the discrepancy in estimates is noteworthy. Furthermore, we conclude that the assessments are inequitable, as compared with other forties within the drainage district. We deem it unnecessary to incumber this opinion with a recital of these comparisons. It may be stated that the plaintiff himself has acted as a commissioner in drainage projects in Shelby County, and was a man of practical experience. To sustain the finding on the 20-acre tract and the middle 40 would put a premium on guesswork, as compared with the careful examination and mathematical computations of the plaintiff’s engineer, supported by the intimate and long acquaintance of plaintiff with the land, and corroborated by neighboring landowners.
The commissioners’ report, approved on appeal in the district court, classified the 20-aere tract as 35 per cent land, the middle 40 as 90 per cent, and the south 40 as 100 per cent land; making the assessments against the three tracts in the sum of $245.60, $1,224.72, and $1,260, respectively, or a total assessment of $2,730.32. The record, in our judgment, fails to sustain the decree entered, and it is hereby ordered that the 20-acre tract shall be assessed in the sum of $137.16, the middle