Aldrich v. Paine

Ladd, JV 1 -I. The trial court found that a majority of the resident owners of land adjacent signed the petition setting forth the necessity, starting point, terminal, and route of the ditch. The record, which must be regarded as conclusive, shows this finding of fact to have been filed on the same day, .and presumably at the same time, the decree was entered. It is doubtless true the appellees had no occasion to object to a judgment in their favor. This, however, did not relieve them from excepting to those special findings with which they were not content, and, having failed to do so, they will be deemed to have acquiesced in the con — 463 — elusions reached. Assurance Co. v. Neil, 76 Iowa, 648; 8 Enc. Pl. & Prac. 275, and cases collected. As no exception was saved, they cannot be heard to question the correctness of the findings, and their appeal will be dismissed. 2 II. The question raised by the defendants’ appeal is whether the board of supervisors had authority to order tho construction of that portion of the ditch within the limits of the incorporated town of Clarion. Section 1207 of the Code of 1873 is as follows: “The board of supervisors of any county having a population of five thousand inhabitants, as shown by the last preceding census, may locate and cause to be constructed levees, ditches or drains, or change the direction of any watercourse in such county, whenever the same will be conducive to the public health, convenience or welfare.” This language is general, and the authority of the board is not restricted in terms or by necessary inference to territory outside of towns and cities. Nor is there any such limitation in any of the sections of this chapter, or amendments thereto, or of chapter 186 of the Acts of the Twentieth General Assembly. The situation may sometimes be such that the ditch must pass through corporate limits in order to carry off the water from- lands drained to a stream, and large areas of land requiring proper drainage may lie within such limits. The authority apparently granted to the board of supervisors must be held to extend to all parts of the county, unless so repugnant to the powers granted to cities and towns as to indicate a contrary legislative intention. The decision of this question involves a somewhat detailed consideration of the drainage laws of this state, and of those powers exercised by cities and towns said to be antagonistic to the construction and maintenance of ditches and drains within their limits under the authority of the county. Section 1208 of the Code of 1873 requires that a “petition signed by a majority of persons, resident in the county, owning land adjacent to such improvement shall be first filed in the office of the county auditor, setting forth the necessity of — 464 — the same, the starting point, route and termini.” In addition to this the basis of the proceeding may be a “petition of one hundred legal voters of the county setting forth that any body or district of land in said county, described by metes and bounds, or otherwise, is subject to overflow or too wet for cultivation ; and that in the opinion of petitioners the public health, convenience, or welfare, will be promoted by draining or leveling the same.” Acts Twentieth General Assembly, chapter 186, section 2. The satisfactory and economical construction of the ditch is assured by preliminary provisions requiring a survey and report with plat and profile, notice to the owners of the land to be affected, the filing of claims for damages, the hearing by the board of supervisors, and, if ordered, then the division of the ditch into sections, and the letting the work to the lowest bidder. Payment is made “out of the county treasury, from the fund to be collected for that purpose, on the order of the county auditor.” Section 1214 is as follows: “There shall be made an equitable apportionment of the cost, expenses, costs of construction, fees, and compensation for property appropriated, or damages sustained by the construction of any such ditch, drain, change 'of direction of such water course or repairing and reopening the same * * * which apportionment shall accrue and be assessed among the owners of the land benefited by the location, construction or the reopening and repairing of such ditch, drain or water course, in proportion to the benefit to each of them, through, along the line, or in the vicinity of whose lands the same may be located, constructed or reopened or repaired respectively, and the same may be levied upon the land of the owners so benefited in said proportions, and collected in the same manner that other taxes are levied and collected for county purposes. And the amount so collected shall be paid out of the county treasury from the fund collected for that purpose on the order of the county auditor * * * and the diverting, obstructing, impeding or fining up of such drains, ditches or watercourses in any manner by any person without legal authority, is hereby — 465 — declared a nuisance, and any person convicted of such crime, shall be punished as provided in title 24, chapter 15 of the' Code for the punishment of nuisances.” And said supervisors shall, when necessary, cause said ditches, drains or watercourses to be reopened or repaired, and the costs thereof shall be apportioned, assessed, levied and collected as herein-before provided for the costs of the construction of such ditches- or drains. It will be observed that any abuse of power by the board of supervisors is carefully guarded against by the requirement of petitions, and the opportunity of being heard afforded every owner of land to be affected; also that, although the necessity for the ditch lies in the public health, convenience, or welfare, those whose lands are beneficially affected must pay for the improvement., No authority is conferred on incorporated towns to construct ditches or drains in the manner or for the purposes-here contemplated. Section 480 of the Code of 1813 authorizes municipal corporations “to cause any lot of land within their limits on which water at any time becomes stagnant to-be filled up or drained in such manner as may b'e directed by a resolution of the council or trustees.” But this very evidently relates to water standing in depressions or pools, and not to large areas of low, wet, or swampy land which absorb the water, and on which it seldom stands, and never becomes stagnant. Besides, the authority of the council is limited to ordering such drainage only, or the lot to be so filled, as to obviate the nuisance occasioned by the standing of stagnant water. Bush v. City of Dubuque, 69 Iowa, 236. Again, under section 18 of chapter 116 of the Acts of the Sixteenth General Assembly (now section 699 of the Code) the owner or lessee of land, who, by grading or filling it, obstructs the flow of water through a water course of any kind, may be required to construct a sufficient drain or passageway. This amounts to no more than the restoration of the natural-course for surface or other water. ' Cities are authorized “to-deepen, widen, cover, wall, alter or change the channel of water courses within their corporate limits,” by section 3 of. — 466 — •chapter 89 of the Acts of the Nineteenth General Assembly, •and, in addition to this, any city of the first class may “build -and construct artificial channels, covered drains or sewers sufficient to carry the water theretofore flowing in any such water courses,” divert it thereto, and fill up the old channel. Acts Twenty-third General Assembly, chapter 6, section 1. These enactments were long subsequent to the statutes giving* authority to the board of supervisors, and, as they relate to cities only, do not aid in determining the point to be-settled. They make clear, however, that the legislature was of the opinion the particular powers granted were not previously possessed by cities. The power to change any water course '.has never been conferred on the incorporated town, and does .not exist, unless as possibly incidental to the care of the streets. See Freburg v. City of Davenport, 63 Iowa, 110; Knostman v. City of Davenport, 99 Iowa, 589; Morris v. City of Council Bluffs, 67 Iowa, 343. Our attention is called to the statute giving the town authority to grade and repair streets and alleys and to construct sewers, and requiring that it shall defray the expenses of the same out of the general funds of such city or town. Code of 1873, section 465. This refers to the building of sewers along the public streets and alleys for the purpose of carrying off the surface water and filth. The right to so construct sewers is usually regarded as incident to the power of maintaining the streets. Cone v. City of Hartford, 28 Conn., 363; Leeds v. City of Richmond, 102 Ind., 372 (1 N. E. Rep. 711); Griswold v. Bay City, 35 Mich., 452; Stoudinger v. Newark, 28 N. J. Eq., 187; Codman v. Evans, 5 Allen, 309; In re Fowler, 53 N. Y. 60; City of St. Louis v. Oeters, 36 Mo., 456. See 6 Am. & Eng. Enc. Law, 19. The word “sewer” does not seem to have a meaning essentially differing from “ditch” or “drain.” Webster defines it as “a drain or passage to carry off water and filth underground; the subterraneous channels, particularly in cities.” It has also been applied to an underground structure for conducting the water of a natural stream. Bennett v. City of New Bedford, 110 Mass., 433. In Clay v. City — 467 — of Grand Rapids, 60 Mich., 451 (27 N. W. Rep. 596), it is said: “Neither is sewerage necessarily, if it is-generally, intended as the escape of filthy water. It includes all kinds of drainage or water discharge.” The sewér is usually closed, but not necessarily so, and is ordinarily applied to drains in the city, whether of water or filth, or both. The difference seems to be largely a matter of location. What is a ditch or drain in the country is called a sewer in the city, and vice versa. But there is no provision for this construction of sewers through private property within incorporated towns, though the power to condemn for this purpose is conferred on •cities. Acts Twenty-fourth General Assembly, chapter 8. That a ditch or drain cannot be so constructed without compensation has been recognized by this court. Fleming v. Hull, 73 Iowa, 598; Hatch v. Pottawattamie County, 43 Iowa, 442. Sewers or gutters along the street or highway would prove utterly inadequate to the drainage of large areas of land, and would involve much expense with little or no corresponding advantages to the incorporation aside from that to the general public. The main benefit is to the owner, and he, and not the public, should bear the burden. It is argued that these drains might be made in order to promote the public health. That this may be done in a locality controlled by the town may be conceded. State v. City Council of Charleston, 12 Rich. Law, 702. But permanent appropriation of’land for its use for that purpose, without compensation, cannot be made, even though for the public good, .and no general powers to condemn appertain to the duties of corporation officers. See Bryant v. Robbins, 70 Wis., 258 (35 N. W. Rep. 546); Martin v. Tyler, 4 N. D., 278 (60 N. W. Rep. 392). It must be borne in mind that municipal corporations have and can exercise such powers only as are expressly granted by their charters or legislative acts, or are necessarily implied therefrom, or are necessarily incidental thereto. Brockman v. City of Creston, 79 Iowa, 589; Becker v. Waterworks, 79 Iowa, 422; Clark v. City of Des Moines, 19 Iowa, 212; McPherson v. Foster, 43 Iowa, 57; Keokuk v. Scroggs, 39 Iowa, 447; Clark v. City of Davenport, 14 Iowa, 494. — 468 — It appearing, then,, that the power is not conferred on the incorporated town, we may consider the objections urged against the possession thereof by the board of supervisors. The board may locate a highway along the ditch “in the same manner as on the report of a highway commissioner.” Undoubtedly, its authority in this respect is limited to territory outside of the cities and towns. Gallaher v. Head, 72 Iowa, 173. In that case it was held that the general authority of the board of supervisors to establish highways was. restricted to territory outside of cities and towns by section 464 of the Code of 1873, conferring on these the power to “lay off, widen, straighten, narrow, vacate, extend, and establish streets.” This conclusion appears to be based on these grounds: (1) under the authority of the board the highway must be opened and worked by the highway supervisor, who is not authorized to do so within a town or city,, and the land within the incorporation is taxed by it for such purposes; (2) cities and towns have control of certain purposes (such as abating nuisances, regulating travel, prohibiting the laying of tracks, etc.) of all territory within their limits; and, (3) the jurisdiction and liability of the county would cease with its establishment, and the burden of maintaining it be cast on the city or town, which might immediately vacate it. If this ease is decisive, as asserted by appellees, it must be because of the reasons on which the decision is based, rather than the language of the statute; for here the same power is not conferred on the county and the incorporated town, and the jurisdiction is not concurrent. The situation is rather that of no power to act on the part of the incorporated town and plenary power on the part of the county. .But the reasoning is not applicable. The town, as owner of the fee of the street, may, if the street is damaged by appropriation of its use in part for the construction of a drain or ditch, file its claim for damages under section 1210, which provides that “any person claiming compensation for land required for the purpose of constructing — 469 — any levee, ditch, drain or water-course * * * shall make his application in writing therefor to the county supervisors on or before the first day of the session at which the petition is set for hearing.” From the determination of the board an appeal may be taken to the courts. The term “person,” as here used, must be extended to bodies corporate. Section 45, subd. 13. If injury will be done the streets, or .an additional burden of expense cast' upon the corporation, we discover no reason why damages may not be claimed by it as well as by the individual owners, through whose land the improvement extends: See Railway Co. v. Starkweather, 97 Iowa, 159. The objection that the responsibility of the county would end with the completion of the ditch is not well founded. It is given authority to reopen and repair. Section 1210; Yeoman v. Riddle, 84 Iowa, 147. Besides, it has been held that, though the county may construct bridges, or aid therein, the city may be held responsible for their care and control. Bell v. Foutch, 21 Iowa, 129; Oskaloosa Steam Engine Works v. Pottawattamie County, 72 Iowa, 135; McCullom v. Blackhawk County, 21 Iowa, 413; Railway Co. v. Murphy, 106 Iowa, post. See Clark v. Town of Epworth, 56 Iowa, 462. The contingency suggested, that, the council, in its discretion, might conclude the ditch ought, to be filled, and fill it, is guarded against by section. 1214, declaring one so doing guilty of causing a nuisance, and punishable accordingly. The control of the corporation, like that of the owner of the land through which the ditch passes, must be consistent with its continuted existence and the purpose of its construction. The appellees assert that, if the supervisors have authority to construct- a drain within corporate limits, an open ditch might be made through the populous portion of a city, and left in such a condition as to be a menace to health, and a dangerous obstruction to travel. The same obj ection can as well be made in behalf of a thickly-settled portion of an unincorporated town or village. It must not be forgotten that drainage is undertaken for the public good, and not for the private advantage or disadvantage of the owners of the land affected. — 470 — Patterson v. Baumer, 43 Iowa, 477. The cost of the improvement is paid by the assessement of benefits, and these would not be such in the settled portion of a town or city as to make possible the contingency supposed. Nor would it be possible to secure the petition required. Besides, the supervisors act for the people of the cities and towns as well as for those of' others portions of the county, and in the discharge of their-responsible duties will not work a great injury to these communities while attempting to promote their health, convenience, or welfare. Some discretion must always be lodged with officers authorized to act for the public in making improvements of this character, and the presumption in favor of their fidelity was vindicated in this case. The town of' Clarion includes fourteen and one-half sections of land, much of which is wet and marshy. The ditch extending through the suburbs of the platted portion and in the streets was securely covered. The very possibilities suggested by the appellees were carefully guarded against. The character-of the ditch is one of the matters to be considered at the heai*ing before the board of supervisors, and, if a covered ditch is-necessary, it may well be presumed that it will be so constructed. It is urged, however, that if this were not done, or if the ditch should get out of repair, the city or town would be liable for any injury occasioned by its unsafe condition, owing to its ownership and control of the streets. If this be true, it is not inconsistent with any power granted, as the-responsibility for the care of the streets remains unchanged, except that another burden is added. No injustice is involved because this may be taken into consideration in fixing compensation for damages. We think the objections urged by the appellees go to the possibilities of abuse of power, rather than want thereof, by the board of supervisors. These were-doubtless given due weight by the legislature, and, as it saw fit not to confine the exercise of authority by the .board to territory outside of cities and towns, we are not inclined to ingraft such a limitation; The necessity of ditches and drains-within the limits of such municipalities will seldom arise, and — 471 — the board of supervisors, when called upon to order their construction, may -well be intrusted to act with due regard for all the interests involved. We conclude that, as the authority to construct drains and ditches or change water courses, as-possessed by the board of supervisors, has not been conferred on incorporated towns, and as its exercise is not inimical or-repugnant to any of the powers granted to such corporations,, it was not the purpose of the legislature to restrict such authority, by implication or otherwise, to that portion of the-county outside of their limits. <Tudgment may be entered in this court dismissing the plaintiff’s petition and that of theintervener. — Reversed.