180 Iowa 1330 | Iowa | 1917
Plaintiff- appeals from the finding, order, and judgment of the district court dissolving the temporary injunction and rendering judgment in favor of the defendants.
I. Appellant’s principal contention is that an attempt is being made to deprive him of his property without due process of law. He rests this contention upon the claim that the respective boards of supervisors of Kossuth and Emmet Counties/acting jointly, proceeded in the matter of the establishment of the district and the appropriation of' a right'of way over his property without having first acquired jurisdiction to do so.
The report of the engineer appointed by the boards to make the preliminary survey estimated that 94 acres would be required for right of way. The plat filed by him indicated the commencement, route and terminus of the ditch, but neither the report nor the plat contained a statement or designation of the exact boundaries of the land sought to be condemned. Appellant filed a claim for damages in the sum of $15,000. The engineer who made the preliminary survey, with two other freeholders appointed to appraise damages, reported the amount of- damages sustained, including the value of the land taken, by each of the property owners in the district. Appellant was allowed $1,248. Damages were allowed for the value of the land taken at the rate of $140 per acre, from which it appears that something over'8 acres of the right of way were taken from the land of the appellant. The report of the survey made by the engineer and the appraisement of damages were each
After the work of excavation had begun, it appeared that, on account of the peculiar condition of the soil and other conditions prevailing, a strip of more than 85 feet in width would be required. The engineer thereupon recommended to the respective boards of supervisors that a further strip of 35 feet in width be appropriated, making the total width of the land proposed to be taken 120 feet. The boards of supervisors, without notice to the property owners or other preliminary action, by resolution approved the recommendation of the engineer, and awarded damages to appellant for the extra land proposed to be taken, at the same rate per> acre, apparently, as previously.
It appears to be conceded by appellant that the proper notice was given the property owners of the petition filed in the office of the county auditor and of the proceedings
The real question presented is whether the matters complained of were mere irregularities or go directly to the question of jurisdiction. So far as material to the question presented, the drainage statutes provide as follows :
“Sec. 1989-a2. * * * He shall make return of his proceedings to the county auditor, which returns shall set forth the starting point, the route, the terminus or termini of the said ditch or ditches, drain or drains, or. other improvements, together with a plat and profile showing the ditches,' drains or other improvements, and the course and length óf the drain or drains through each tract of land, together with the number of acres appropriated from said tract for construction of said improvement, * * * and the description of each tract of land therein and names of the owners thereof as shown by the transfer books in the auditor’s office, together with the probable cost, and such other facts and recommendations as he may deem material.
“Sec. 19S9-a6. * * * any party aggrieved may appeal from the finding of the board in establishing or refusing to establish the improvement district or from its finding in the allowance of damages to the district court by filing notice with the county auditor, * * * If the appeal is from the action of the board in establishing or refusing to establish said drainage district, the court shall enter such order as may be proper in the premises, and the clerk of said court shall certify the same to the board of supervisors, who shall proceed thereafter in said matter ip accordance with the order of the trial court.
“Sec. 1989-a46. The provisions of this act shall be lib*1337 erally construed to promote the leveeing, ditching, draining and reelámation of wet, overflow or agricultural lands; the collection of the assessments shall not be defeated, where the proper notices have been given, by reason of any defect in the proceedings occurring prior to the order of the board of supervisors locating and establishing the levee, ditch, drain or change of natural watercourse provided for in this act, but such order or orders shall be conclusive and final that all prior proceedings were regular and according to law unless they were appealed from.”
Statutes granting this power are strictly construed, and jurisdiction or authority granted by such statutes can only
“But notwithstanding the right is one which appertains to sovereignty, when the sovereign power attaches con-' ditions to its exercise, the inquiry whether the conditions have been observed is a matter for judicial cognizance. This is simply a reaffirmation of what Chief Justice Marshall said in Barron v. City of Baltimore, 32 U. S. 243 (8 L. Ed. 672), as follows: ‘That the right of eminent domain applies to every independent government. It is an incident to sovereignty, and requires no constitutional recognition.’ The legislature cannot, strictly speaking, delegate this power, but may select such agencies to exercise it, and may confer on them such rights, as are not forbidden by the Constitution. It follows then that the power, except when assumed by the sovereign itself, can be exercised only in virtue of a legislative enactment, and that the time, manner, and occasion of its exercise are wholly in the control of the legislature, except as it may be restrained by the fundamental law. Bachler's Appeal, 90 Pa. St. 207; Swan v. Williams, 2 Mich. 427; Wilkin v. Railroad Co., 16 Minn. 271 (Gil. 244); Secombe v. Railroad Co., 23 Wall. 108 (23 L. Ed. 67). The authority must be expressly given, and strictly pursued. Creston Water Works Co. v. McGrath, 89 Iowa 502, Lewis, Eminent Domain, and cases cited. The jurisdiction is limited, and can only be exercised in the manner pointed out by statute. California Pac. R. Co. v. Central Pac. R. Co., 47 Cal. 549.”
“The order of taking must contain a description of the land included in the.limits of the new public work so that it will identify a definite tract of land as certainly as is required in the case of a conveyance of land, or in the proceedings for condemnation by judicial decree, and any doubt
Section 1989-a2 requires the engineer to include in this report: “* * * a plat and profile showing the ditches, drains or other improvements, and the course and length of the drain or drains through each tract of land, together with the number of acres appropriated from said tract for construction of said improvement, * * *”
The engineer appointed for the designated purpose must set forth in his report the exact width, boundaries and location of the right of way required for the improvement and sought to be condemned by the board of supervisors for that purpose. This is required by the statute, which, in so far as the same seeks to take private property for public use, must be strictly construed'. This is not in conflict with the provision of the statute which requires the drainage act to 'be liberally construed to carry out its purpose. The report of an engineer recommending the proposed drainage improvement is jurisdictional, and as to such matters the statute is mandatory, and must be strictly followed. Unless the proceedings conform strictly to the statutory requirements as to jurisdictional matters, the board will be without authority, unless such statutory requirements are waived by the person affected. '
The complaint now made of the engineer’s report was not made before the boards of supervisors, except in so far as same might possibly be implied from the general objection that the boards were without jurisdiction to establish the district. Had this objection been urged before the boards of supervisors, an order could have been made directing the engineer to amend his report so as to remedy the defects therein. Upon the failure or refusal of the boards to take the proper action in the matter, the district court, upon appeal, had full authority to have the error corrected. In Hartshorn v. District Court, 142 Iowa 72, this court said:
“That upon appeal to the district court in such cases the court may pass upon the order appealed from, affirming or reversing the same, and making such orders, for the direction of the board of supervisors as may be proper for giving effect to the court’s judgment or decree.”
See also Section 1989-a6, quoted above.
Notwithstanding the duty of the engineer to indicate upon his plat or in his report specifically and definitely the exact boundaries of the land to be appropriated, yet, if his report or plat contained such facts as that therefrom true lines and boundaries of land to be ■ appropriated can be ascertained or computed, the situation would not be the same as it would have been had there been no report of an engineer. . In Kelley v. Drainage District, 158 Iowa 735, the report of the engineer omitted the description of several
“A description which when followed up will enable an engineer to ascertain precisely the lands intended is [not] so defective as to render all subsequent proceedings illegal and void for want of jurisdiction.”
See also In re Drainage District No. 3, Hardin County, 146 Iowa 564.
As above suggested, the omission in question was one that the boards of supervisors had authority to direct the engineer to correct, and, doubtless, would have done so had their attention, at the time, been called thereto. The engineer could readily have marked out the boundaries on his plat with precision. It therefore seems clear that the omis-i sion is only an irregularity which could easily have been corrected by the engineer, and that appellant, failing to appeal from the finding and order of the boards, must be held to have waived such irregularity. Such is the plain provision of the statute quoted above.
“Save only in cases where the order of proceedings sought to be enjoined is absolutely void, — not voidable merely, — it is well settled that a special remedy created by statute is exclusive as to all the controversies coming with*1342 in its scope, and if a party to whom such remedy is given fails to take advantage of it, he cannot resort to equity for relief. Nixon v. Burlington, 141 Iowa 316; Reed v. Cedar Rapids, 137 Iowa 107; Andre v. Burlington, 141 Iowa 65; Owens v. Marion, 127 Iowa 469; Minneapolis & St. L. R. Co. v. Lindquist, 119 Iowa 144; Stevens v. Carroll, 130 Iowa 463. The remedy by appeal was broad and ample, the district court being given by the statute above cited full power to hear and try every objection properly raised, and to set aside, vacate, or modify the assessment complained of, and generally to make such order as the city council ought to have made in the premises, or remand the proceedings with proper orders and directions for further proceedings in harmony with the findings of the court.”
It therefore follows that the decree of the court below in favor of appellees, in so far as the foregoing matters are concerned,' must be sustained.
Counsel for appellee suggest that, while the proceedings to condemn the extra 35-foot strip may not be regular, appellant will not he prejudiced on account thereof. It may be that, upon the trial of his claim for damages, appellant Could show the extent and real value of the land taken, but counsel here confuse the legal -right of appellant with a favorable situation resulting from a combination of cir-
The question presented must be determined upon the basis of his rights as they existed before the final order oí establishment, and not in view of favorable circumstances subsequently accruing to him. This court has often held, as above suggested, that it is the duty of a property owner to raise every objection which he may have to the improvement before the final order of the board is entered, and, in doing this, he need not anticipate the happening of future events and circumstances not contemplated by the statute, or order of the board of supervisors.
What we have said above is sufficient to show that appellees are wholly without authority to appropriate the 35-foot strip in the way attempted. The statute provides no such way of condemning private property for public use. The authorities cited above are conclusive upon this question. Defendants should have been restrained from entering upon or using any part of the 35-foot strip referred to in the engineer’s report.
In so far, therefore, as the decree of the lower court is inconsistent with this finding, same is reversed, and the cause remanded to the district court with directions to enter a decree in accordance herewith, pending further proceedings in the matter of obtaining further right of way. —Reversed.
