140 Iowa 492 | Iowa | 1908
— The material facts involved in this case are not seriously in dispute. The real contention between the parties arises over the legal' conclusions to be drawn from these facts. The tile suéd for by the plaintiff was not his property originally, and was not such at the time of the alleged removal of the same from his land, unless it became such by operation of law. It appears that in 1884 a petition was presented to the board of supervisors under the section of the drainage act which is now known as section 1952 of the Code. Proceedings were had for the establishment of a drainage district including the plaintiff’s lands. In pursuance thereof a tile drain was laid and completed in the year 1886. Plaintiff had notice of all these proceedings, and always acquiesced therein. There was some delay in the finishing of - the work, and in September, 1885, the plaintiff served upon the board of supervisors a formal notice in writing, requiring them to complete the work. The principal work remaining to be done at that time was the covering of the tile upon plaintiff’s land. In such notice plaintiff disclaimed any authority
It does not appear from the record before us what was the method adopted for paying the expense of such tile drain, except that it appears that a substantial part, at least, of such expense was paid by appropriation out of some fund by the supervisors. The tile drain in question continued in operation down to the year 1905. This is known in the record as the “Harvey Drain.” In 1904 proceedings were instituted before the defendant board, under section 26, chapter 68, Acts 30th General Assembly, which is now known as section 1989-a25, Oode Supp. 1907. In pursuance thereof, and in substantial accord with all the requirements of the statute, a new and larger drainage district was established including within itself the Harvey drain. A larger tile drain was laid along tire same water course, and at a considerably greater depth than the Harvey drain. So far as the plaintiff’s land was concerned, the new drain was laid for the most part along the side of the Harvey drain, at distances varying from one to several rods, except that it actually intersected such drain at one point. After the completion of that part of the new drain, the tile constituting the old drain was taken up, and used in the construction of the new drain at points higher up in its course.
The theory of the defendants is that section 26 of chapter 68 by its terms contemplated that the old improvement should be supplanted, and, so far as available, should be appropriated by the new improvement, and that express provision was made in such section for compensation to the parties entitled thereto'. The theory urged by the plaintiff is that the tile drain upon his land does not come within the purview of such section 26, and was not an old improvement within the meaning thereof, because
Many other questions are discussed by counsel, but what we have already said is necessarily decisive of the case.
The judgment of the court below will be affirmed.