179 Iowa 248 | Iowa | 1917
The design in' excavating drains, open or closed, is first to furnish an outlet available and sufficient for use in draining all the lands of the district. The owners of some of the lands may not connect therewith or tile their lands. The improvement affords them the opportunity so to do, however, and, as drainage will be beneficial thereto, the making of the improvement and the levy of apportioned assessments proceed upon the theory that all will avail themselves of the opportunity for efficient drainage. This is doubtless what Luick, one of the commissioners first appointed, meant when he said, “All the land is supposed to be tiled.” Only by so doing do all reap the benefits to be derived from the improvement. Whether filing has been laid prior to the improvement or this has been done subsequently can make no difference, unless the improvement directly drains the land previously tiied. And even, then this ordinarily is not of much importance, for the public drain is then substituted as the outlet, and, where the land intersected thereby has not been drained, laterals, if constructed, necessarily connect with the public drain, taking the water thereto from the same area which would otherwise be cared for by it. The advantage in the way of drainage from having the improvement through any tract of land is likely to be overestimated rather than overlooked.
None of the lands on which assessments áre said to be excessive touch the improvement, and in every case connection therewith must be made through land of another. The important consideration, then, is the benefit of the outlet, such as is furnished thereby, as compared with that previously enjoyed for each particular tract. This is all that is meant by the statement in several cases that the fact that the land previously has been tiled when the district was established should be taken into consideration; for, if tiled, there must have been an outlet, and, if permanent and entirely efficient, no benefit could well be derived from a public drain unless it should be from the drainage of lands dominant thereto by carrying off the surface waters which otherwise would reach the servient estate. If, however, the outlet is not permanent, or is not as efficient as the public drain will be when completed, the land necessarily will be benefited. See Obe v. Board of Supervisors, 169 Iowa 449; Harriman v. Board of Supervisors, 169 Iowa 324; Rystad v. Drainage District, 157 Iowa 85; Lyon v. Board of Supervisors, 355 Iowa 367.
As the benefits derived by appellants’ lands must be compared with those to oilier tracts in the districts and the several assessments levied, these latter may here be referred
Reverting, now, to the several appeals, we may first consider—
II. Miller’s Appeal.
The following are the descriptions of his land, the first
NE14 EW14 Sec. 9, 32 acres..........$302.92 $128.70
SE% NW% Sec. 9, 38 acres.......... 391.79 78.00-
SW14 NE14 Sec. 9, 7 acres.......... 50.52
Total ............................$805.23 $200.70
NE% NW14 Sec. 15, 27 acres..........$300.21 $ 39.00
NWVt NW14 Sec. 15, 35 acres.......... 409.11 142.35
SW14 NWi/4 Sec. 15, 39 acres.......... 603.15 317.85
SEi/i NWy4 Sec. 15, 40 acres.......... 530.13 327.00
Total ..........................$1,914.60 $826.80
On hearing in the district court, the assessment against the SW14 NW14 of Section 15 was reduced from $603.15 to $553.15, and that against the SE14 NW%, from $530.13 to $480.13. According to Meacliam, the northeast 40 of the NW]/[ of Section 9 had a small pond or two, where the crops had died out. In the southeast 40 there were two little wet spots, one a pond 5 or 0 rods across, near the southwest corner. Both 40’s‘ are tiled and cultivated through an outlet extending westerly through the W% ' NW]/t of Section 9 to the highway on which it emptied. The fall was nearly 4 feet. The main advantage of the public drain is that of being able, through negotiation or ^condemnation, to extend this tile through the land of Lewis about 120 feet, so as to connect with the public drain. Meacham estimated the benefits to the northeast 40 at $128.70, and to the southeast 40 at $78, and that the SW14 NE14 of Section 9 would not be benefited at all.
Meacham’s testimony is to be criticized in two respects: i. e., he omitted to consider benefits to portions of land in-
The public drain is available upon extension of the tiling previously emptying into the highway, and the Avater, instead of settling in the SAvampy land or pond beyond, will be carried off to the creek beloAv. Of course, a permanent outlet 7 or 8 feet deep is greatly to be preferred to that on the surface, other things being equal, and especially to one casting water where it necessarily settles on the land of others and is not likely to remain any considerable time as it is. It is difficult, however, to estimate its value in dollars, and we shall not undertake to do so, save by comparing the benefits therefrom with those to other lands. As said, both commissions agreed on the NE14 SE14 of Section 8 as the 40 most benefited, and it was classified at 100 per cent. 34 acres thereof Avere designated swampy, and the remaining- 5 acres found to be wet. Water usually stood in an 80-acre pond on the Ey2 of this section, and all witnesses agree that this 40 was practically useless without drainage. No other outlet than the public drain Avas or had been available. Said drain extended across it diagonally northwesterly, so that no loss because of distance would be suffered in connecting laterals 'therewith. And yet Miller’s
IV. Thielen’s Appeal.
Mr. and Mrs. Thielen own the SE]4 of Section 15, and the several 40’s were assessed as shown in the first column,
NEi/± of SE% of Sec. 15............$402.10 $245.70
NW14 of SE14 of Sec. 15............ 371.17 1.79.40
SW% of SE% of Sec. 15............-482.52 214.50
SEi/^ of SE% of Sec. 15............ 391.79 140.40
$1,647.58 $780.00
The NWx/4 of the quarter was classified at 45 per cent, the NE% and the SE14 at 50 per cent each, and the SW% at 60 per cent. Much of this land was unfit for cultivation, only 90 acres having been cultivated prior to the laying of a tile system in 1911. The main extended from a ditch near the center of the south line of the quarter northwesterly 2,050 feet, consisting of 1,000 14-inch tile and the remainder 12- and 10-inch tile. The ditch extends into the land below. Another outlet was into a ditch near the center of the east line. The main there was of 6-inch tile. Laterals were laid 100 feet apart, and the result Ayas the efficient drainage of 140 acres, leaving 20 acres unfit for cultivation. This 20 acres had been seeded to tame grass. The outlets, it is to be observed, were not permanent, nor such as ordinarily prove entirely satisfactory, though the fall, being 2.78 feet, was enough to carry off the water. The public drain was more than 80 rods from any part of this quarter, and from the south line where the 14-inch main ends, the distance, as we understand the record, is one-half mile. As compared with'the benefits derived by the initial 40 and others along the improvement, we think the classification should not have exceeded 40 per cent on each of these 40’s, and it and the assessments will be reduced accordingly.
Y. StreeveFs Appeal.
George Streever owns the E% of Section 16.- The public drain extends across the SW14 SW14 of Section 15 to
Description Bates Meacham
NE% NE% Sec. 16..................$587.68 $429.00
NW% NE% Sec. 16.................. 643.35 727.35
SW% NE14 Sec. 16.................. 562.94 544.05
SE1/4 NE1/4 Sec. 16.................. 643.35 719.55
NE14 SE% Sec. 16.................. 562.94 891.15
NW% SE% Sec. 16.................. 383.54 . 78.00
sw%'s]i% Sec. 16.................. 157.74 27.30
SE% SE% Sec. 16.................. 532.83 403.65
$4,074.37 $3,820.05
It is to be observed that the commissioners headed by Bates and those headed by Meacham differed but little in their estimates in the aggregate, though they proceeded on different theories. Meacham testified that the NE]4 NW]4 of Section 16 was a wide, wet slough, with a pond over a great portion of it, and S.treever, that there' were about 20 acres of slough which would be covered with water before it overflowed, and that some water stood on the land about 11 months of the year. This water, as we understand the record, passed through the depression in Streever’s land. Prior to the making of the improvement, he had extended a 12-inch tile drain from a ditch in the highway between Sections 15 and 16, and near the half section corner, in a northwesterly direction about- 100 rods, and had laid 4 branch tile drains therefrom. This followed the depression and was approximately in the location near where the public drain was subsequently laid.
Owing to the location of the drain with reference to these lands and their character, we are not inclined to interfere with the assessments apportioned to them. But the SWi/4 SE% and the NW14 SE*4 were not subject to overflow, and the elevations taken show that the fall was such as to have carried the water from them in large part independently of artificial drainage. The percentage of the NW% SE’% will be reduced from 60 to 40 per cent, that of the SW14 SE14 from 45 per cent to 25 per cent, and the assessments accordingly. As indicated at the outset, the situation is such as to render it all but impossible to attain any very satisfactory result. This is because the assessments against the initial 40 and others of like character
The tendency to saddle an unjust portion of the expense of redeeming wet and swampy lands by drainage on the dominating estates, less benefited, if at all, is to be condemned, and the classification and apportionment should be made strictly in accordance with the benefits reasonably to be expected or actually enjoyed. The cause is remanded to the district court for the modification of the decree in harmony with this opinion. — Modified and remanded.