(186 N.W.) "Where the excavation exceeds six feet, the last spading may be thrown back on the tile, but the engineer may require such work to be uncovered at intervals for his inspection. tiff board testifies that the engineer had let the work or any part thereof, without done very well. There is little, if any, evi- the previous consent of the first party, buc dence to sustain the claim of gross negli- some of the work was sublet without such gence. The board seemed to have taken the consent. The condition of the bond is that usual precautions to determine whether there the contractor will do all the labor on the had been a compliance with the contract sections of said improvement therein named, before the acceptance. They examined the including section 19, according to the conditch as well as they could. Some of them tract. The specifications, among other say they relied on the engineer, whose evi- things, provide thatdence will be referred to later in the opinion.` The principal ground of complaint in regard to the work is that the tile were not in alignment, and that there were openings at the joints of from four to six inches In places, and some of the tile were broken, permitting sand and mud to enter the tile. The appellees contend that there was a substantial compliance with the contract, and that there was no fraud or concealment; that if there was any side-slipping or settling of the tile causing the defects complained of by plaintiffs, it was after the work was completed, and through no fault At the time the improvement was finally of defendant. This is the principal conten-reported on by the engineer and accepted by tion in the case, if indeed it is not the only the board, it appeared to be satisfactory. question. The tile shall be laid with closed * joints, and true to line and grade. The man- on. It may be well to refer here, in a general way, to the conditions under which the tile was laid, the character of the soil, and so Practically the entire 3,900 feet of section 19 was through sand. The top was a light black loam, the subsoil sand. Some of the witnesses call it water-bearing sand. others quicksand, and still others boiling sand. It was worse at some places than others; some of the witnesses refer to pockets. There is evidence that the sand would flow anywhere the water would flow; water seeping into the cracks would carry sand with it. It was difficult to secure foundation which would permanently stand up in such soil. In places it afforded poor foundation for the tile. At some places it was necessary for defendants to pack or box hay under the tile to support it. This was done, and it is shown that this was the usual, proper, and only way to do. As the hay would rot, soil would take its place. The evidence tends to show that the area served by this drain was so flat that there is practically no drainage for it, and that originally it was an engineering mistake. The evidence relied upon by plaintiffs to show fraud, and that the work was not properly done, and that there were defects therein prior to the acceptance, is for the most part based upon conditions discovered a considerable time after the ditch had been completed and accepted. Some of such evidence is in regard to conditions observed about two years thereafter, and some of it as long as five or six years. Drainage district No. 96 in Webster county was duly established prior to June, 1913. The district included a large open ditch and a number of tile sections or branches, in all 22 sections, among which is section 19, sometimes referred to in the record as branch 11. Section 19 is 3,900 feet long. The contract was entered into June 28, 1913, with defendant ditcher company, for the construction of said section 19. The work was begun soon thereafter, and the ditch was accepted in June, 1914. Final report of the engineer was approved by the board about August 7, 1914, and the engineer's final estimate of 20 per cent. was paid. The defendant ditcher company also had contracts for the construction of other Plaintiff's engineer testifies: That there sections or branches of the improvement. was much discussion as to the direction The complaint is only as to No. 19. Sepa- the water would naturally flow. Some of rate contracts were made for each section, the farmers insisted it went one way, and but one bond was signed to cover all the others another. Because of the flat country contracts. The contract with the defendant there was controversy in determining the utcher company was for labor only. The way the improvement was to run. That contract provides that the contractor will the tile is deeper than usual in this section perform all the work for the construction of the country because of the flat nature of of section 19 in a good, careful, and work- the country to be drained. That the water manlike manner, and in accordance with the could have been taken east with more fall, plans, specifications, etc., and in accordance but with a much deeper cut. The construcwith the general specifications for drainage tion was commenced in July 1913. The layditch construction in Webster county. It ing of tile was completed October 25, of provides that the contractor shall not sub- that year. In 1917 an extension of branch 11, or section 19, was constructed, and known [end of the bulkhead. The construction of as drainage district No. 208. When plain the bulkhead was a difficult job, because tiff's engineer was succeeded by another they started out with 10 inches of water about three years after this ditch in question was constructed, he made an inspection of section 19, and found washings, and made a report to the board. This was after 208 had been constructed. A member of the board testifies: That one of the troubles was that the people were complaining that it was not draining their land. That the tile hooked on to the north end of this was not giving any service. That district 208 was hooked on to the north end of 19. They said the fall was so slight that they could not get drainage. Went out with the engineer after the complaint had been made. That 19 and 208 would not drain the land. The contractor who cleaned out or reconstructed No. 19 and constructed 208 testifies that they took the sand out of 208, but it laid there from 1915 to 1918. The sand he found in section 19 in the spring of 1919 came from 208. in the tile. That what little grade they had would get them away from the water some, but that they had water practically all of the way; that the outlet furnished the contractor was higher than the bottom of the tile. The reconstruction of No. 19 was completed in 1918 and inspected in 1919, after the outlet of the open drain had been reexcavated, and it was still found, according to some of the witnesses, that the tile would not clean itself or furnish sufficient drainage. Two witnesses testified that at the time of the trial there were 19 inches of sand in the bottom of the tile in the bulkhead, 15 inches of mud and 4 inches of sand; that farther up at the end of the 26-inch tile there was 5 inches of water and 21⁄2 inches of sand; at another point, 1 inch of water and 5 inches of sand; at another point, 11 inches of mud and no water. Other evidence is to the effect that the From this it is contended by appellees average cut was 9 feet; that they would be that, while the ditch in controversy was digging in 6 or 7 feet of sand, which was completed in 1913, it was not until after the generally quite fine, and would readily flow construction of 208, in 1915 and 1916, that with the water; greater care is required complaints were lodged, which complaints in the construction of an improvement unincluded both 19 and 208. The engineer's der such conditions; half-inch joints in firm plans called for the construction of a tile soil might not be dangerous, but in sandy drain to empty into an open ditch. Another soil it would. As before noted, the specifidifficulty in the construction of this ditch cations permitted half-inch joints. There was that the water in the open ditch was is evidence that water coming in through so high that, according to some of the evi- the top of the tile, it would extend down dence, it ran from the open ditch into the the sides; wash the dirt from the ends, tile. Two years after this ditch was completed, the county engineer reported to the board that the outlet of section 19 was a foot and a half below the water in the open ditch-that the silt is a foot and a half above the bottom of the tile-and he recom- is sufficient, the water will loosen the sand mended the re-excavating of the open ditch. Appellees contend that the outlet for this tile had been buried since the date of construction, for two years. cause a cavity behind the tile, and remove a lateral support of the tile and make it subject to cracking; it is impossible to make a joint tight enough to prevent sand from going in where the water goes; if the grade and carry it out, but, if flat, sand will set. tle; the tile used were 22. 26, and 30 inches, and weighed from about 300 to 400 pounds. The tile were not furnished by the defendA member of plaintiff board testifies that ant contractor. The tile used was single the open ditch was cleaned out in 1916, be- strength. Plaintiff's engineer testifies: That fore the repairs or relaying of section 19 with the knowledge he had at the time of was started, and extended the open ditch the trial, it would have been desirable to further down to give it a better outlet. use double strength at least in the deeper Another witness for plaintiff testifies: cut. There is evidence that tile laid in clay That the sand which was in the tile that he rebuilt for the county was not washed in there by the water. That the sand in the tile then was because the outlet was not deep enough; that the sand is from the other end of the district. That there was still sand in No. 19. This was 3 years after the original ditch was completed. There is other evidence as to conditions at the outlet. When the original work was commenced in 1913, it was commenced at a point where the tile drain was to empty in soil will remain in place, but in sand it is likely to get out of alignment, even though they were in perfect alignment and perfectly joined when laid, and the ditch filled. We shall not go into the evidence of the witnesses who describe the conditions of the tile when examined afterwards. The evidence shows that some tile were out of alignment and some were broken, and there were large spaces at the joints in places. The work on this section was done with a large machine, weighing probably 18 tons. There (186 N.W.) being a proper instrumentality. Several through the tile, and, so far as they could witnesses say it was. The specifications re-ascertain, the tile was in good working orquired some dirt to be put back on the tile der. This was in the summer of 1914, after immediately, and the engineer could require the tile had been in place all winter. That such work to be uncovered for his inspec- he based his report to the board upon his tion, if necessary. There is nothing in the examination of the work from time to time, evidence to show that the engineer ever felt and by checking the grade line by his excalled upon to require uncovering. He was amination afterwards, and his reliance and on the job, and saw it frequently, and says belief that the precautions he had urged' he could check the grade of the last tile upon the company to guard against defects laid and examine the manner in which it had been taken. Going back a moment, the had been laid. Because of the sandy soil evidence is that it seemed to be working it caved in behind the machine, thus partly properly until a heavy rain, probably the filling the trench over the tile. The engi- next spring after the work was accepted, neer testifies that there were some short although the engineer is not certain as to places, some short lengths, where there was the time. Some time afterwards he made clay, wherever the tile was not covered by the falling in of the earth behind the machine. an examination and made a report to the board, and notified the defendant company. Excavations were made in enough of the Witnesses for defendant say that the dirt large washins to ascertain the difficulty, and and sand dropped in behind the machine at these points the large joints were regradually, and that they could see the tile was paired. That while the tile were generally in good shape, and that it was not necessary in alignment, there were spaces between the to dig down and uncover the tile. It should tile at the points where washins had ochave been said that the engineer testified curred. He says that some of the washins he sounded through the sand, and was able that were found, after the complaint was to get his sounding rod on the tile, and found made by property owners, were 20 feet long that the tile was practically on grade. The and from 6 to 10 feet wide. Some were engineer testifies that he knew the sand small. In the larger holes it went down to was caving in on the tile, and that it could the tile, and in the smaller ones not so far. not be avoided. The ditch was filled later. The engineer watched the work in progress; There was a wooden curbing, or cage imme- saw the machine in operation, and the men diately behind the excavator, and pulled laying the tile; never had any occasion to along by the machine. The man laying the go back and dig up any of the tile. While tile stood within the cage. He used a crow- he was watching the work it was well done; bar, which is shown to be the proper meth- had no suspicion it was not being well done. od, to keep the tile in place. There is some While he watched them, all precautions givsuggestion by plaintiffs that the machine en by him were being faithfully carried out. would also pull the tile along, but the weight At times dirt was placed on the side of the of the evidence is that this was not and tile to keep it in position and from rolling could not be done. Neither the machine nor sideways. In addition to hay, sod was used the cage touched the tile. The cage had a to build a foundation. None of those conround bottom, and there was no pressure on nected with the work seem to have been sure either side of the tile. The tile was held that under the conditions existing the tile with a crowbar, and the dirt came in be- would remain in permanent alignment, but hind the tile. The engineer says that he there is evidence to show that everything could not examine definitely the tile back was done that could be done. They tamped of the machine that were covered, without at the side of the tile whenever it was necuncovering the tile and removing the dirt, essary. If the banks caved in evenly, it was which would be more expensive than the or- not necessary to tamp. Defendant's witiginal excavation. He did caution defend- nesses say that on the curves or cracks they ant's field manager of the importance and used bats over the top of the tile at the necessity of using care under the circum- joints. This was done every time there was stances, and that he was assured by the a crack, whether there was a sand pocket field manager that this would be done, and or not. Witnesses say that when the tile the field manager says it was done; that every agency known was used to do work. was cleaned out in the spring of 1914, the tile were in alignment, and that there were patches and bats over the cracks. This was found to be the case wherever they dug down. At the time there were no broken tile. That they saw no wide joints, except those that were batted. good Witnesses for defendant say there was nothing else that could be done to lay the tile more perfectly than was done. The engineer for the board and a committee of the board of supervisors made an examination Appellees emphasize the fact that it was before the work was accepted, as well as not until the fall rains of 1914 and the they could, and at the intake and at the spring rains of 1915, and the construction outlet the water was flowing properly of district No. 208 in 1916 that conditions 186 N.W.-2 Objection to assessment available to landowner admitting regular organization of district and drain constructed stated. The sole objection to assessment available to an owner of land, who admits that the district was regularly organized and the drain constructed, is that the apportionment of costs was inequitable, or that classification adopted was unfair. 4. Drains 79-Assessment of lands of old district for extension sustained. were serious enough to have the board send 13. Drains 79 the engineer out there to examine the condition of the tile. His report after such examination was filed in September, 1915, about 2 years after the tile had been laid. The defendant company was notified of that report, and notified to repair or relay the tile. At that time the board attempted to 'set aside the approval of the engineer's first report and the approval by the board, and this is the action they now seek to have confirmed. There is evidence tending to show that the washing of the sand would take the support from the tile on the sides, and thus cause a breakage, particularly so where the tile was not of double strength, and there were several feet of sand on top. There is evidence that the conditions found when the tile was examined at later dates might develop after the tile had been laid and were apparently all right when laid. The plaintiff's engineer and defendant's field manager were experienced in drainage projects. The defendant company also had large experience. The men employed to operate the machine and lay the tile were men who understood such work. [2] The foregoing is, of course, but a mere summary of the testimony in the record. The burden is upon plaintiff to show the fraud alleged. From the entire record, we are of opinion that the plaintiffs have not established the fraud or a right to recover. The judgment of the district court is therefore affirmed. STEVENS, C. J., and WEAVER and DE GRAFF, JJ., concur. located at a point where the natural slope was County; G. D. Thompson, Judge. The opinion sufficiently states the case. Healy & Breen, of Ft. Dodge, for appellant. J. E. Burnstedt and J. M. Blake, both of Webster City, for appellees. WEAVER, J. age district known as the "Philip" or "DisIn the year 1911 a draintrict No. 109" was established and improved in Hamilton county. It contained about 2,200 acres of land, and the drains constructed were of tile emptying to the southward. There were two mains, one from the northeast and one from the northwest, meeting at the south boundary and discharging through PHILIP DRAINAGE DIST. v. PETERSON, a common bulkhead into an open ditch. The County Auditor, et al. (No. 33896.) fall or slope to the south was comparatively (Supreme Court of Iowa. slight, and the lower ends of the mains above Jan. 10, 1922.) mentioned were laid near the surface. In 1. Drains 82 (3)-Only objections specified a short time the bulkhead appears to have before supervisors can be considered on ap- been undermined and become more or less peal from confirmation of assessments. broken and dilapidated, and the natural While Code Supp. 1913, § 1989a12, provid-grade or slope of the land to the south was ing for objections to an assessment of benefits insufficient to carry away promptly the for a drainage district, is to be liberally construed, and all objections considered which are covered by fair interpretation of the specifications, there must be some exactness of specification to entitle the objector to be heard on appeal, and objections argued on appeal from confirmation of assessments which were not presented to the supervisors will not be considered. 2. Drains 71-Claim property received no benefits is not valid objection to assessment. Where it was not disputed that the district was properly organized and that the drainage system had been completed, an objector owning land within the district cannot avoid assessment on the plea that his land receive no benefit from the drainage. drainage flow from the north. In 1917 a 109 and extend southward therefrom far new district was organized to include No. enough to take in an additional area of about 1,900 acres. By this extension it was sought not only to afford drainage of the land to the south of the old district, but to obtain a sufficient fall to give an efficient outlet for the entire district of about 4.000 acres. No question is raised in this court as to the regularity of the organization of the district. The work has been done at an aggregate expense of about $36,000, of which there was assessed $6,400 against the lands in the old district No. 109 and the remainder (186 N.W.) against the lands in the additional 1,900 | appeal. R. R. Co. v. Monona County, 144 acres, the assessment on the former averag- Iowa, 171, 122 N. W. 820; Appeal of Jenison, ing about $3 per acre and on the latter about | 145 Iowa, 215, 123 N. W. 979; Lightner v. $17 per acre. To this assessment the appel- Board, 156 Iowa, 398, 136 N. W. 761, 137 N. lants filed objections on nine different W. 462. grounds. The first four are in effect general allegations that the board of supervisors failed to act "as required by law" in establishing the district and in making the assessment, but in no manner specifying or pointing out any alleged defect in the proceedings, nor is any such specific objection urged upon this appeal. The remaining objections so presented are to the effect that the assessment upon the lands of the appellants is excessive and that said lands are assessed at a higher or greater rate than other lands similarly situated and similarly benefited. The objections being overruled and the assessments confirmed by the board of supervisors, the objectors appealed there from to the district court, which affirmed the assessment as made. [2-4] II. We find nothing in the record to impeach the fairness of the assessment. It is true that one or two property owners in the old district testify that in their judgment this part of the district received no real benefit from the reconstruction of the outlet or from the improvement made to the sputh of the district as originally improved; but it must not be overlooked that under the statute an objector owning land within the district cannot avoid assessment on the plea that his property receives no benefit from the drainage. It stands conceded, or at least undisputed in this record, that the district was properly organized and that the drainage system has been completed at a cost of $36,000 or more. The sole objection available to the appellants under this rec[1] I. We think it must be said at the out- ord is to the distribution or apportionment set that, aside from the contention that the of that cost upon the property within the assessment upon the lands within the limits district. To support such objection no eviof the old district No. 109 is disproportion-dence is offered tending to show that such ately high or excessive, the appellants' argu- apportionment is inequitable, or that the ment in this court is not addressed to the classification adopted was unfair, or that objections presented to the board of super- the lands of the appellants are assessed at a visors and to that extent presents no ques- higher rate than other lands similarly sittion which we are authorized to consider or uated or similarly benefited. On the condecide. For example, it is said and the ef- trary, it appears with reasonable certainty fort of counsel is very largely directed to that the outlet from the old district has been the proposition that the "assessment is for deepened and improved in a manner to inan outlet which was never constructed"; crease the efficiency of the drainage and diand that appellants "were assessed for a manhole type of construction when as a mat-rectly or incidentally benefit the lands of the ter of fact this type of construction was not original district and that in making the asinstalled"; and that plaintiffs "were assessed sessment due consideration was given to the for a system to be laid at a grade ade- fact that said old district had already proquate to take care of the outlet previously vided and paid for a drainage improvement. installed, and this system was not construct- It appears that due to such fact the average ed upon the grades for which plaintiffs were assessment upon lands in the old district assessed"; and, finally (in substance), "that averaged less than one-fifth of the charge plaintiffs were assessed for future benefits" made upon the additional 1900 acres, and which they might have derived had the orig-if the appellant's property is to be held liainal plan been adhered to but are not avail-ble at all to contribute to the improvement, able to plaintiffs under the plan or type of a liability which we must here take for work actually done. Not one of these objections was raised before the board of supervisors, and while the statute (Code Supp. 1913, § 1989a12) providing for hearings upon such objections is not to be narrowly construed and the court will exercise a liberal discretion in considering all objections which by any fair interpretation may be covered by the language or terms in which they are expressed, there must yet be some fair degree of exactness of specification to entitle the objector to be heard thereon on granted, we discover no valid ground on which to question its equitable character. It was made by men experienced in such service, received the approval of the board of supervisors, affirmed after full hearing by the district court, and no sufficient reason is advanced to this court for holding it erroneous or invalid. The decree appealed from is affirmed. STEVENS, C. J., and PRESTON and DE GRAFF, JJ., concur. |