Mason City v. Board of Supervisors

Ladd, J. A drainage district was established including lands in Wright and Humboldt Counties. To drain these a ditch was located along the route of a natural water course acrbss which the Mason City & Ft. Dodge Railway Company had constructed its railroad, operated at the time of the trial by the Chicago Great Western Railroad Company. The railroad grade at the crossing was seven feet above the natural surface, and, concerning an opening for the passage of water, one of plaintiff’s witnesses testified on cross-examination that “at or near” this place there was a wooden box four by five feet through' the embankment for the purpose of letting the water through, and plaintiffs introduced the return of the drainage engineer to the notice to them in pursuance of section 18, chapter 68, Acts 30th General Assembly, 1904, reciting that their engineer “agreed that the ditch could cross about two hundred and fifty feet southwest of where the company now has a wooden box and that the opening under the railroad track should be as large as a drainage 'ditch planned at that place.” Aside from this, there was no evidence concerning the character, location,' or purpose of the -opening through the embankment, or how it came to be placed where it was. The profile indicated that the proposed ditch through the right of way would be four feet wide at the bottom, with .sides sloping out one and one-half feet to each foot, in depth, seven feet deep, and therefore twenty-five feet wide at the top. The appraisers estimated the damages to plaintiffs in the excavation of the ditch through its right of way to be $400, and upon appeal to the district court this was increased to $2,200. Evidence was received on the trial tending to show the cost of a concrete and steel culvert through the embankment over the ditch and also that of a wooden bridge, and what sum of money at the rate of five percent interest per annum would be necessary “for the original construction and subsequent maintenance of the — 13 — frame structure which cost originally $500', and that had to be renewed every eight years.” 1. Drainage: maintenance of bridges: liability of railway company. The trial court in its rulings on the admissibility of the evidence and instructions to the jury excluded from consideration the fact that the opening in the railroad embankment was for the excavation of a ditch the bed a natural water course, and held that the entire cost of construction, together with that of maintenance in the future as compared with the cost of maintaining the embankment, should be allowed as damages. Whether the wooden culvert two hundred and fifty feet away was so located as to serve as one placed as required by section 2021 of the Code does not appear. That section makes it the duty of the railway company to “maintain and keep in good repair all bridges with their abutments which it may construct for the purpose of enabling its railway to pass over . . . any water course.” So that, even were the drainage district chargeable with the expense of construction, that of maintaining could not rightly have been included in the assessment of damages. 2. Same. Nor do we think that expense of building or rebuilding a culvert or bridge over a ditch excavated in the bed of a natural water course passing through a right of way is a proper element of damages in such a case. The increased volume of water and the improvement to carry it away are but the results of better drainage of the tillable lands on either side of the track which the company was bound to- anticipate. Of course, a railroad company may not be required to widen or deepen a water course through its right of way at its own expense any more than this may be exacted of a landowner, but the public has the undoubted authority to widen and deepen such a course, even though this shall render necessary the rebuilding of the bridge or culvert, and, when this is done, the expense is a proper one for the railway company — 14 — to bear. The right of drainage through the natural water course is a natural easement appurtenant to the land of every individual through which it runs, and every owner of the land along such water course is obliged to take notice of the easement by others along the same. In constructing its embankment or culverts or bridges through it, the company does so subject to the right of the state by appropriate agencies to provide for such use of the natural water course as subsequently may become necessary and proper for public interests. Chicago, B. & Q. R. Co. v. People, 200 U. S. 562 (26 Sup. Ct. 341, 50 L. Ed. 59, s. c. 212 Ill. 103, 72 N. E. 219). The Illinois Supreme Court, after a review of the decisions, declared that “the great weight of authority is that where there is a natural way, or where a highway already exists and is crossed by the railroad company under its general license of building a railroad, and without any specific grant by the legislative authority to obstruct the highway of waterway, the railroad company is bound to make and keep its crossing and at its own expense in such condition as shall meet all the reasonable requirements of the public as changed conditions and increased use may demand.” This was fully approved on appeal by the Supreme Court of the United States. See Chicago Northwestern Railway Co. v. Drainage District No. 5, 142 Iowa, 607. 3. Same: constitutional law due process. In this State establishment of the drainage district is authorized “whenever the same will be of public utility or conducive to the public health, convenience or welfare and the drainage or surface water from agricultural lands shall be considered a public . -it-i-ii benefit and conducive to public health, convenience, utility and welfare.” Drainage within the contemplation of the above statute is for public use, convenience and welfare (Sisson v. Board of Supervisors of Buena Vista County, 128 Iowa, 442), and, this being so, the making of the improvement is within the police power of the — 15 — State, and injury such as here claimed, being merely incidental thereto, can not be regarded as the taking of property within the contemplation of the Constitution. Chicago, B. & Q. R. Co. v. People, supra. 4 same: construction of drains: damages. As we understand the briefs, there is no controversy over these propositions; the companies resting their claims on certain statutes in force at the time when these proceedings were had. Section 18, chapter 68, Acts 30th General Assembly, made it the duty of the engineer in charge of the work “to notify the railroad company by serving a written notice upon a station agent of such company or its lessee or receiver that he will meet the company at the place where the said proposed ditch, drain or water course crosses the right of way of said company, said notice fixing the time of such meeting which shall not be less than five days after the service of the same, ■ for the purpose of conferring with such railroad company in relation to the place where, and the manner and method in which such improvement shall cross such right of way.” Upon failure to agree, these matters are to be determined by the railroad commissioners. As seen, they did agree, and section 19 of the above chapter provided that “such railroad company shall within thirty days after being notified by the county auditor to construct the same and the time within which the work must be completed, proceed to construct such levee, ditch, drain or change of natural water course in accordance with the plans and specifications as shown by the plat and profile of the engineer. If such railroad company shall fail, neglect or refuse to do so within the time fixed in such notice, the auditor shall cause the work to be done under the supervision of the engineer in charge of the improvement and the railroad company shall be liable for the charge thereof, to be collected by the county in any court having jurisdiction, All other proceedings in relation to railroads shall be the same as provided for individual property owners in — 16 — the district, except that the cost of constructing the improvement across its right of way shall be considered as an element of its damages by the appraisers thereof; and the commissioners to assess benefits shall fix and determine the actual benefits to the property of the railway company within the levee or drainage district and make return thereof with their regular return. Such special assessment shall be a debt due personally from the railroad company, and unless the same is paid by the railroad company as a special assessment, it may be collected in the name of the county in any court having jurisdiction.” In construing this statute, the obligation of the railroad company, but for its conditions, to construct a culvert or bridge over this. ditch at its own expense is not to be ignored. Its location and character had been agreed upon, and it is to be assumed to be such as the successful drainage of the district required. But for the clause in the statute “that the cost of constructing the improvement across the right of way shall be considered as an element of damages” there would be no basis for the claim of the companies for compensation. To what, then, do the words “the improvement” refer ? Manifestly “the ditch.” It is mentioned as the improvement throughout the drainage statutes, and in section 18, chapter 68, the meeting of the drainage engineer and that of the company is “for the purpose of conferring with such railroad company in relation to the place where and the manner and method in which the improvement shall cross such right of way.” If they fail to agree, then the railroad commissioners are to “determine the place where and the course, direction, and manner in which such ditch, drain or water course shall cross such right of way.” The company is required by the next section to construct “such levee, ditch, drain or change of natural water course in accordance with the plans and specifications as shown by «the plat and profile of the engineer.” The character of the culvert or bridge — 17 — the company shall erect is no part of such plat or profile or of the plans of the drainage engineer. These are matters solely for the consideration of the railroad company, and, though made necessary by, form no part of “the improvement” contemplated by the statute. The cost of extending the ditch across the right of way, and not of constructing or reconstructing culverts or bridges rendered necessary because of this being done and their maintenance forever, is the element of damages contemplated by the statute. As the triál court ruled otherwise, its order fixing the amount of damages is reversed.