166 Iowa 344 | Iowa | 1914
The drainage district involved is known as No. 34. It comprises in the main sections 22, 23, 26, and 27, township 85, range 22. The enterprise includes a certain main drain, with certain lateral branches extending into sub-districts. The controversy herein relates to the lateral branch known as H-l, and to the subdistrict served thereby. This lateral branch, as well as the subdistrict served thereby, is all contained in sections 22 and 27; the subdistrict comprising the western part of said drainage district No. 34. The follow-ing map will aid an understanding of the discussion:
I. Taking up the first contention, a few further details of fact must be noticed. Appellant’s railroad was constructed about ten years ago. For most of the way through the
II. Was the amount assessed against the appellant disproportionate and therefore excessive? This question presents more difficulty than the first. As already indicated, this was
Q. Now, Mr. Stafford, take the Ole C. Hougen piece of ground upon which you admitted the construction of this improvement was greater than the assessment, and compare that with the tract of ground belonging to this railroad on which you have made the assessment much larger than the construction on the very much smaller piece of ground. Why did you do that? A. Well, there is quite a difference in the earning capacity of that piece of ground and the railroad. Q. You were taxing on the earning capacity? A. Isn’t that worth more? The railroad is benefited immediately where that is not. Q. You don’t mean to say that a construction can be put eighty rods across a 40-acre piece of ground and not benefit it immediately? A. What would be the immediate benefit? Q. The drainage of it. A. Well, what improvement*351 or benefit would the property owner derive? Q. Don’t you consider the amount of this improvement is a benefit? A. I will say the land is worth more after it is drained. Q: But it don’t get any immediate benefit? A. They don’t derive any immediate benefit. He has got to go to work and tile it and then prepare it for a crop, all those things, before he derives any benefit. Q. So he does not get the benefit at all from the initial improvement? A. Not immediately. Q. But the railroad gets more than the cost of the improvement? A. It would seem so, yes.
In support of the assessment, counsel for the appellees is driven to the following ingenious argument:
Railroads should be in the foremost rank and file of the march of improvement because there cannot be any improvement to the country in any form without being a benefit to the common carrier. They get the first benefit, namely, the freight, their passenger traffics, and, as lands are drained, plowed, and redeemed, railroad stock in that territory advances. By the construction of drainage district No. 34, not only the right of way was relieved of the water, but appellants received a direct benefit by the drainage of every acre of land in the district. True, appellant might well urge that landowners bordering on the district to be benefited by the drainage of the lands adjoining them are benefited, but I wish to urge that their benefit is slight compared with the benefit that the railroad company receives by having a territory redeemed and a part of it that has heretofore been useless brought into use; the products therefrom being hauled by carriers for hire.
If a better argument were available, we are sure that the alert counsel for appellee would have put it forward. We think there is no fair escape from the conclusion that the assessment against the railway company was disproportionate in amount. This conclusion is emphasized somewhat by the fact that the company incurred an expense of $150 in constructing the two crosscuts under its track, as already indicated, and that it will be necessary that the drain be extended another four
Modified and Affirmed.