Citation Numbers: 178 Iowa 1281
Judges: Aynor, Evans, Ladd, Salinger
Filed Date: 1/15/1917
Status: Precedential
Modified Date: 7/24/2022
This case is submitted under an agreed
1. Drains : assess“oUect?oneofas-: lowed by Ian- - improyement^ct ne^aistriet1:^ right of property owner. In APril> 1890> there WaS established in Hancock County, by proper proceedings, a drainage district known as Drainage District .No. 2. This district covered about 12,000 acres of land, including the land owned by the plaintiff. About 8,000 acres of this land were assessed for the cost of the improvement, to wit, $12,992.50.
The scheme and plan involved in the improvement provided for a lateral drain, to be known as Lateral No. 2, to run about 35 rods along the southeast quarter of the southeast quarter of Section 36-96-25, and about 190 rods west and along the south line of the southeast quarter of Section 35. Plaintiff is the owner of this land, and it lies to the north immediately adjoining the proposed lateral. The cost of this lateral, as estimated by the engineer, in his report recommending the establishment of this improvement, was $225. This lateral, if constructed, would affect only plaintiff’s land.
All the southeast quarter of Section 36 was included in this Drainage District No. 2, and assessed for the sum of $40 for the improvement. All the southwest quarter of Section 36 was included, and assessed the sum of $350 for this improvement. All. of the east half of the southeast quarter of Section 35 was included, and .assessed for this improvement the sum of $110. The cost of the entire improvement was assessed pro rata against the entire 8,037 acres, as by law provided, and the owners of the land duly paid the sum into the county treasury; and the same was duly paid out, on proper warrants, for the construction of said improvement. After the same was exhausted, various other levies were made on said land for the purpose of defraying the cost of repairs, etc. The last of the additional levies was made in September, 1902'. The amount assessed was $500.
When the assessments were paid, they were passed to the credit of Drainage District No. 2 by the county treasurer, and, when expended, -were paid out on warrants drawn against the fund so created; but no separate -account was kept showing on what part of said improvement the assessments paid by any particular tract in said district were expended.
In January, 1904, there remained in the office of the treasurer, to the credit of Drainage District No. 2, the sum of $813.40. On April 7, 1907, there was transferred to the account of said district, from the county fund of said amount, the sum of $135. Lateral No. 2, heretofore referred to, was never constructed, and no part of the assessment collected, either for the original construction or repairs, was ever expended on this lateral.
Thereafter, during the year 1905, a petition was filed with the county auditor of Hancock County,' asking that Drainage District No. 2, together with Drainage District No. 1, be reorganized, and other lands taken in, which had not been included in either district, and that a new drainage district be created.
Thereafter, a new drainage district was established, known as No. 1 and 2, which included all the land in “1” and “2” as then existing, and about 39,000 acres in addition. Commencing about October, 1906, and continuing until the establishment of this new drainage district, the preliminary expenses were paid by warrants drawn upon the old fund of District No. 2. There was paid out of this fund in this, way, prior to May, 1911, the sum of $956.45. After the establishment of District No. 1 and 2, the sum of $956.45 so expended in preliminary work was, by resolution of the board, transferred from the fund of the new district back to the fund of the old District No. 2, and this sum now stands as a credit to District No. 2, and to the property so
So far, there is no controversy between the parties either of law or fact. Plaintiff, however, contends that, inasmuch as a portion of this Lateral No. 14, provided for in this new drainage scheme, covers the same territory as Lateral No. 2, and is located at about the same place, his land ought not to be required to pay again for the construction of that portion of the lateral which covers the same territory and gives only the same benefit as the original Lateral No. 2 would have given. This, for the reason that the land was assessed and the assessments paid for this very purpose. This is the only controversy here.
The contention of the plaintiff is that, inasmuch as Lateral No. 2 affected only the land owned by him, and was to be constructed for the purpose only of giving special benefits to his land, and inasmuch as he was assessed, for the construction of this Lateral No,-2, by the old and original District No. 2, and inasmuch as this assessment was paid aiid the ditch was never constructed, the new district, though having the right to construct the ditch and assess the land, ought to be required to credit plaintiff on such assessment the sum originally paid. To this end, the old district ought to be required to pay over to District No. 1 and 2, the amount received, to be by it credited on whatever assessments District No. 1 and 2 may make against plaintiff’s land for the construction of this new Lateral No. 14.
Many objections are urged to plaintiff’s request.
The district court, of course, found the facts to be as stipulated, and that the owner paid the assessment against
This section reads:
“If any . . . drainage district . . . which may hereafter be established, shall prove insufficient . . . the board of supervisors, upon petition therefor as for the establishment of an original • . . . drainage district, shall*1286 have the power • and authority to establish a new . . . drainage district covering and including such old district or improvement, together with any additional lands deemed necessary; and whenever a new district shall be established as contemplated in this section and the new improvement shall extend into or along the former improvement, the commissioners of classification and benefits shall take into consideration the value of such old improvement in the construction of the new improvement and credit the same to the parties owning the old improvement as their interests may appear.”
Equity presumes that done which ought to be done. It is clear, therefore, that, when the old district was established and the lands classified and assessed, the assessments were based upon the thought that the contemplated improvement would be made. The estimated cost of this lateral became a part of the estimated cost of the improvement. When assessments were made, they were made on the basis of benefits received, pro rata, upon the entire property included in the district. To illustrate: If the district were created under the forms of law, land in the district classified and assessed, and the assessments paid, but no work of construction done, and thereafter a new district was organized, including this land covered by the old district, and the same improvements were contemplated by the new district within the limits of the old district, and the new district was about to construct such improvements, and to classify and assess the land for the same, it would clearly appear that the old district would be required to account to the new district, or the parties assessed, for the money so received. If the old district were permitted to retain this money, as against the landowner thus included within the new district, they would be permitted to hold the money which, under the authority and sanction of the law, they had taken from the landowner, without giving him the benefits for which the money was taken. Under the authority and sanction of the law, the old
Therefore, District No. 2 was paid for making this particular Lateral No. 2, as a part of the estimated cost of the entire improvement. It has money which should be devoted to the construction of this lateral. ' Plaintiff is entitled to insist that it be so used. And, since the old district has been reorganized, and has passed into the hands of the new district, and since the new district contemplates doing that which the old district should have done, it seems just and equitable that the old district be required to contribute the amount received, as the estimated cost of this lateral, so that the new district may have it to accomplish that purpose which was involved in the old scheme and assessment, and which, the stipulation shows, affected beneficially only the plaintiff’s land. Or, in other words, since the new district, as organized,- is about to construct a lateral along the line of the old lateral, and is to assess the plaintiff’s land for the cost of its construction, it is apparent that the plaintiff is entitled to have turned over to the new district so much of the amount paid the old district as represents the estimated cost of this lateral; so that the new district, in contemplating this lateral, may credit the assessment made by it, with the amount assessed and collected by the old district. This seems to be dictated by the commonest principles of justice, and we find no arbitrary provision of law standing in the way of the con