Appeal of Focht v. Board of Supervisors

145 Iowa 130

• Court: Supreme Court of Iowa
• Decided: December 18, 1909
• Status: Published

Opinion

Deemer, J.

On January 8, 1907, a petition was filed for the establishment of what was to be known as the “Nishnabotna Kiver Improvement District No. 2,” in Fremont County, Iowa. On the next day the board of supervisors approved said petition, and appointed one Seth Dean, a civil engineer, to make a report and survey'thereon. The commissioner so appointed proceeded with the work, and on April 10th filed his report, etc., with the hoard. Thereupon notices were ordered and given pursuant to law, and May 27, 1907, was fixed as the' time when objections and claims for damages should be filed. Within the time so fixed appellees and others, who were owners of lands within the proposed district, filed objections to and remonstrances against the improvement as reported by the commissioner. During the hearing of these objections, appellees also filed a motion to dismiss the proceedings and objections to the boards acting therein, for the reason, among others, that one H. O. Vanatta, a member of the board, was a landowner within the district, and was personally and financially interested in the establishment thereof. The matter proceeded without determination un-' til August 5th, when appellees filed a motion for a continuance, in which they asked that the proceedings be postponed until after the first Monday in January, 1.908, when a successor to the said Vanatta would be inducted into office. This motion was objected to, and the petitioners for the ditch also insisted that appellees had waived all objections to Vanatta’s sitting in the case. On August 6, 1907, the board, by resolution, voted to establish the improvement and district; two of the members, one of whom was Vanatta, voting Aye, and the other members voting No, and on September 27th the board, by resolution, finally established the drainage district as recommended by the commissioner, the vote on the final resolution being unanimous. Appellees, who constitute' a large majority of the landowners within the district thereupon appealed to the district court, where the case came on for hearing at the January term thereof, resulting in a decree reversing and setting aside the action of the board of supervisors. The board and some of the petitioners for the ditch appeal.

The propositions made against the establishment of the district in the court below were as follows:

. (1) Owing to the fact that one of the members of the board was interested in the establishment of the ditch, and voted in favor thereof, its establishment was without jurisdiction.

(2) No plat was filed prior to the establishment of the ditch as required by the statute.

0 (3) The establishment of said ditch is not for the best interests of the landowners of said district.

The trial court reversed the action of the board upon the third ground alone, although it intimated grave ■ doubts regarding the sufficiency of the plat filed by the commissioner before the order for the establishment of the ditch was made. The objections to this plat were that it did not show the elevations of the several tracts of land within the district, and did.not show in what manner the various tracts of land would be benefited. It is conceded that one of the members of the board of supervisors who voted in favor of the establishment of the district owned land therein.

The proposed improvement is an extensive and expensive one. The district embraces about eight' thousand four hundred and forty-six acres of land, and the plan contemplates a change in the channel of the West Nishnabotna Eiver from near the boundary line .between Mills and Fremont Counties on the north for a distance nearly ten and one-half miles in a southerly direction. This river is a .stream about one hundred feet in width, and carries a constant flow of water. ' It is subject to periodic overflows, and drains large areas of land. ’ The river bottom itself averages about one and one-half miles in width, and this bottom is subject to overflow in times of high water or heavy rains. During that part of its course which is material to our inquiry, it drains a territory about four miles • in width on either side of the channel; and from the east four or five creeks, Some of them of considerable size, empty into the river, while from the west five or more creeks empty into it. Some of these creeks drain large areas of land. In this connection we may say that the civil engineer did not before the establishment of the district by the board make any estimates of the cost of getting these streams connected up with the new channel or ditch, which was to carry the river water as well as the standing water upon some of the lands within the district. The evidence shows that nearly every year, and sometimes several times a year, the entire river bottom is covered with water from one to six feet in depth, and that little of the lands within this bottom can be cultivated with any degree of safety. The purpose of the proposed improvement is to reclaim these bottom lands, and savé them from overflow by straightening the channel of the river. The estimated cost of the improvement without taking into account the connecting of the creeks with the new channel is something over $85,000, or, in other words, the expense, if borne ratably according to acreage, would amount to $10 per acre. The natural channel of the river through the proposed district is very tortuous; its length, as it now runs, being something like twenty miles. The fall of the old channel is about one and seven-tenths feet per mile. The proposed new channel as already observed, is something over ten miles long. It was to be twenty-four feet wide at the bottom and thirty-eight feet at the f°p?’ and its average depth was fourteen feet. The fall of the new channel was to be about three and three-tenths feet per mile. The proposed new ditch or channel crosses the old one at something like thirty different places, and the south end of this new channel was to connect with the north end of a new channel made for the river by some private parties who had undertaken to straig’hten the course of the river to the Missouri state line, a distance of something like fourteen miles.

In the river bottom are some sloughs, low places, and bayous, in which water collects during floods and remains until -disposed of by evaporation. It is thought that by straightening the channel of the river, and by increasing its fall, the bottom lands can be reclaimed, and made fit for agricultural purposes. The theory is that the new channel, although not nearly as large as the old, will gradually be made larger by the rapid flow of water through it; that until it is so enlarged the old channel will take care of the surplus water; that, as the new channel is being made larger, the old channel will gradually be filled up by the deposit of silt, and that eventually the new channel will not only take care of the flood waters, but that the sloughs, bayous, and low places will be drained through! percolation, and that in the end the entire bottom will be made fit for tillage. Appellants are not so bold as to claim that all overflow will cease. They say in argument:

That a large portion of the district to subject to frequent overflows, and most of it to overflow at time of -extraordinary floods which occur once in four or five years, sometimes oftener. Ordinary floods occur frequently. There are sloughs and low places in which water is retained for a considerable time after flood, ánd is disposed of by the slow process of evaporation. The first years after the construction of the ditch the flood water will also flow in present river channel and the increased flow will carry away the water of local rains before floods from the tortuous channel above the north county line bring down the river floods, and reduce the number, extent, and duration of overflows. The evidence shows that hundreds of acres are submerged but a few inches, and the increase of flow-age and lowering of flood level would relieve this land from all except the extraordinary floods, and would so .speedily relieve from extraordinary flood as to minimize the damage. The evidence shows that by cutting through low places and much slough land will be directly reclaimed, and the lowering of the water level will subdrain much land and greatly enhance the farming value of and increase the acreage that can be safely cultivated, and put to more valuable use than under present conditions. Evidence shows that at times of extraordinary floods the majority of lands upon which crops are damaged or destroyed is but a few inches under water, and the increased flowage and lowering of flood level would relieve vast bodies of land from the extraordinary floods or free them from water in so short a time that but little damage would be sustained.

This is, of course, problematical, and we shall presently refer more at length to these claims.

i. Drainage: of districts: peaierfrom supervisors. I. Since this case was tried in the district court, we have filed an opinion in Denny v. Des Moines County, reported in 143 Iowa, 466, upon which' appellants place great reliance. The proposition advanced is this, that, as the matter of establishing drainage districts is purely a legislative function, all parties are concluded by the finding of the board of supervisors, and that there can be no appeal from its finding to the district court. From - this premise it is argued that, as the district court had no jurisdiction' of the matter, its order of reversal is of no validity, and that we should reverse the action of the district court, with instructions to dismiss the appeal and leave the matter with the board of supervisors for further action in the premises. It is true that in the Denny case we held there could not be an appeal from a finding of the board of supervisors that a proposed drainage, was not for the public benefit or utility or conducive to public health, convenience, or welfare, for the reason that such question was legislative, and not judicial, in character.. There was no holding, however, that there could not be an appeal by any one in such proceedings. That question was carefully guarded in the opinion filed. We quote the following paragraphs from the report of that case in proof of this assertion. For instance, it is said:

No doubt a finding by the board of supervisors that the petition is not sufficient in form or matter is judicial, and subject to review on appeal to a court; but is a finding that the board deems it best or not advisable to establish the district and make the public improvement, on the ground that such action would, or would not, be conducive to the public health,- convenience, or welfare, or to the public benefit or utility, subject to such review? ... It must be borne in mind that the appellants are asking the district court to review on an appeal a finding by the supervisors that they do not- deem it- best to establish the drainage district in question, on the ground that it is not for the public benefit or utility or welfare. If 'the statutory appeal, which seems to be authorized in such cases, is a valid exercise of power on the part of the district court in this case, then the drainage district is to be established, if at all, not because the supervisors deem it best, but because the district judge has reached that conclusion1. . . . It is well settled in this state that the Legislature may provide for the exercise by a court of the power to judicially determine facts which are made the conditions on which authority may be exercised by officers to whom is delegated the exercise of legislative and executive power. Thus a statute has been upheld which authorized a proceeding in the circuit court, as it formerly existed, to determine whether justice and equity required that certain described territory or any portion thereof, should be annexed to a city or town; but this statute was upheld, as against the constitutional objection founded upon the separation of the departments of government, only upon the theory that the facts on which the court was to determine the question were issuable facts, capable of judicial determination. ... As already- indicated, we think the function of the board of supervisors in determining the sufficiency of the petition for the establishment of a drainage district is judicial, and’ there is no reason why .that judicial function might not have been vested in a court in the first instance had the Legislature so provided. . . . .Questions relating to the establishment of a public highway are somewhat analogous, and it has been held -that a statute authorizing a judicial tribunal to determine the existence of conditions specified therein as requiring’ the establishment of such highways are not unconstitutional, inasmuch as the question only of the necessity of the- highway was to be submitted for judicial determination. . . . Of course, the Legislature may provide for a review in the courts of the action of a tribunal, legislative in character, which it has required to determine issues of a judicial nature; but it Can not authorize such review of the exercise of a discretionary power. . . . We reach the conclusion that both on principles of sound reason and in accordance with the great weight of authority the lower court was right in holding that it had no jurisdiction to review the action of the board of supervisors in dismissing the proceeding instituted by these plaintiffs for the establishment of a drainage district, and its judgment is therefore affirmed.

In arriving at the doctrine announced in any case, we must always have in mind the particular facts of that case, the arguments used, and the conclusions reached. Not every statement found in a judicial opinion is to be regarded as the law of the case. Much that is said by way of argument is to be regarded as dictum, and the case is authority for nothing more than it. expressly decides. What the Denny case really decides is that there can be no appeal to the district court from an order of the board of supervisors, finding that a proposed drainage district is not for the public benefit or utility, or conducive to the public health, convenience, or welfare, and a refusal to establish the district on that account. That is quite a different proposition from an appeal by landowners within a proposed district, whose land is to be taxed with the expense of the proposed 'improvement, from an order of the hoard establishing such a district, ánd ordering the improvement made at the expense of the landowners whose lands can only be taken in consideration of benefits conferred. In the one case no one’s property is taken, and no one’s possession is disturbed. In the other his property may be taken, his possession disturbed, and his lands appropriated for public or semipublic purposes. True, in the latter case the act of the board of supervisors is legislative or quasi legislative in character, but by statute it has some questions of fact to determine which may properly be made the subject of judicial'review before the property of persons interested may be taken or made subject to an assessment tax. One example may seiwe as an illustration of - this view: The fixing of railway, telegraph, telephone, and water rates is purely a legislative function, and no one can appeal from the failure or refusal of the proper legislative body to fix -what are deemed to be reasonable rates, and, even when fixed, no one may appeal because they are not fixed low enough by the legislative body having the matter in hand. But it is perfectly proper for the company whose revenue is affected, or whose property is to be taken, to appeal to the courts to have the matter of the reasonableness of the rates fixed determined. Other illustrations might be given, but this will suffice.

Now the statute under consideration provides: “The board of supervisors at the session set' for hearing on said petition, which session may be regular, special or adjourned, shall thereupon proceed to hear and determine the sufficiency of the petition in form and substance, at any time before final action thereon; and if deemed necessary the board may view the premises, and if they so find that such levee or drainage district would not be for the public benefit or utility or conducive to the public health, convenience or welfare, they shall dismiss the proceedings.” Code Supp. 1907, section 1989-a5. Also: “When the time for final action shall have arrived after the filing of the report of the appraisers, said board shall consider the amount of damage awarded in their final determination in regard to establishing such levee or drainage district, and if in their opinion, the cost of construction and the amount of damages awarded is not excessive and a greater burden than should be properly borne by the land benefited by the improvement, they shall locate and establish the same. . . . Any party aggrieved may appeal from the- finding of the board in establishing or refusing to establish the improvement district, or from its findings in the allowance of damage,' to the district court. - . . . When the appeal is from the order of the board in establishing or refusing to establish the levee or drainage district, it shall be tried in equity and the appearance term shall be .the trial term; the findings of the court in relation to the establishment or refusal to establish the levee or drainage district shall be certified by the clerk to the board of supervisors who shall enter an order in harmony therewith, and proceed accordingly. . , . If the appeal is from the action of the board in establishing or refusing to establish said drainage district, the court shall enter such order as may be proper in the premises and the clerk shall certify the same to the board of supervisors who shall proceed thereafter in such matter in accordance with the order of the court.” Code Supp. 1907, section 1989-a6. In Denny’s case the board had proceeded no further than to dismiss the proceedings under section 1989-a5, and it was held that from such an order no appeal would lie to the district court for reasons already stated.

Here the board made a contrary finding, and had also so far proceeded under the subsequent provisions of the statute as to locate and establish the district and ditch, appoint appraisers, and award the damages, from which appeal had been taken when the case was appealed to the district court. The record further shows that- a permanent survey was made and approved, and that the board had passed a resolution providing for the bonding of. the district to procure the funds with which to pay for the improvement. That landowners whose lands have been taken or damaged, or whose property it is proposed shall be assessed, may be authorized to appeal from the finding of the board that the district should be established, and that the cost of construction and the amount of damages awarded was not excessive or a greater burden than should properly be borne by the land benefited, we have no doubt. See, as sustaining the view, Stearns v. City, 73 Vt. 281 (50 Atl. 1086, 58 L. R. A. 240, 87 Am. St. Rep. 721); Dexter v. City, 176 Mass. 247 (57 N. E. 379, 79 Am. St. Rep. 306) ; French v. Barber Co., 181 U. S. 324 (21 Sup. Ct. 625, 45 L. Ed. 879) ; Sisson v. Board, 128 Iowa, 459; Ill. Central Co. v. Chicago, 141 Ill. 586 (30 N. E. 1044, 17 L. R. A. 530); Fleming v. Hull, 73 Iowa, 598; McGee v. Board, 84 Minn. 472 (88 N. W. 6); State v. Crosby, 92 Minn. 176 (99 N. W. 636); Cooper’s Case, 22 N. Y. 84; Young v. Salt Lake, 24 Utah, 321 (67 Pac. 1066); Nash v. Fries, 129 Wis. 120 (108 N. W. 210); Village v. Baker, 172 U. S. 269 (19 Sup. Ct. 187, 43 L. Ed. 443). From the Stearns case we quote the following:

The very .existence of the provision makes the question of necessity ultimately a judicial one. If it does not, the Legislature remains supreme in this regard, notwithstanding the Constitution. It is doubtless true that the people can not divest themselves of this attribute of their sovereignty; but the constitutional provision is not an abandonment of the right, but a regulation of the manner of its exercise. It gives to the judicial branch of the government a measure of power that would otherwise belong to the legislative branch. It says, in effect, that the courts • shall see to it that property is not taken unless a necessity for its taking exists. If a legislative determination of the question of necessity would be conclusive in the absence of the constitutional provision, that provision, if it is to have any effect whatever, must deprive the legislative determination of its conclusive character. The statement in Faster v. Bank, 51 Vt. 128, above cited, that any legislative act authorizing an appropriation -of private property where the necessity does not exist is plainly in conflict with the Constitution, is apparently a recognition of this view; for how can the question of conflict with the Constitution arise if there can be no inquiry as to the necessity?

From the Sisson case we quote:

The initiative petition required must declare for' a public use, and. the board of supervisors- convened in session and in the exercise of a judicial function well understood must find that the particular ditch or drain petitioned for will in fact result in a given benefit and be of community use.

From McGee’s case we extract the following':

While it would be competent for the Legislature to ignore the judicial power entirely in providing for some work of improvement, and delegate the duties of taking the property and awarding compensation entirely to a body having no judicial attributes, yet the question whether such improvement is a public use, or the means of awarding just compensation, presents issues upon which the courts might be the final arbiters, and, again, the question whether the public use existed might depend upon facts involving the consideration whether the improvement, would be adequate for the purpose it- was intended. In either case the Legislature itself, or through a designated body, might determine such question, or might impose upon the courts the duty to determine the essential facts in some proper and appropriate method. . . . We must go further, and inquire into the character of the improvement; for, if the public use is to be determined by the court, such use may depend upon a consideration of disputable facts, as for instance, whether the establishment of the uniform height of water to be maintained is adequate for. the only purpose upon which the right to take private property for public use can, under the precise terms of the statute, be made to' depend, viz., the ‘improvement of navigation and the protection of public health.’ Upon these questions, which present issues of fact, involving the utility of the improvement itself, it would seem proper, if not necessary, for a court to hear evidence and determine the disputed facts. In doing so the court does not trench upon legislative functions, but aids the legislative power by its determination that it is consonant with the protection of ‘public health’ or ‘improvement of navigation.’ . . The state drainage law provides for the institution of a ditch when the county commissioners decide that it will be ‘of public benefit or utility or conduce to the public health, convenience or welfare.’ The determination of the board of eommissioners is not in this respect conclusive. An appeal may be taken to the district court, and there that question is. finally decided. Whenever an appeal is taken, the action of the commissioners may be sustained in whole or in part.

In State v. Crosby, supra, it is said: “The condemnation of land through which such ditches, may be constructed, the assessment of damages, and the determination of the legal rights to parties affected are judicial. The exercise of both these powers is involved in proceedings under this statute.”

From Cooper’s case we quote as follows:

The principle to be deduced from these extracts obviously is that where any power is conferred upon a court of justice, to be exercised by it, as a court, in the manner and with the formalities used in its ordinary proceedings, the action of such court is to be regarded as judicial, irrespective of the original nature of the power. The Legislature, by conferring any particular power upon a court, virtually declares that it considers it a power which may be most appropriately exercised under the modes and forms -of a judicial proceeding. If, therefore, there were nothing whatever to characterize the proceedings in this case as in any respect judicial, except that they were had in the exercise of a power conferred upon the Supreme Court as a court, I should not hesitate to hold that they were subject to all the ordinary incidents of other proceedings in courts of justice.

In Field v. Clark, 143 U. S. 649 (12 Sup. Ct. 495, 36 L. Ed. 294), it is said: “The Legislature can not delegate its power to make laws, but it can make a law to declare a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which can not be known to the law-making power, and which must therefore be a subject of inquiry outside of the halls of Legislature.” From Young’s case we take this: “It will be conceded that, while the Legislature can'not delegate power to make laws, it may still make' laws to take effect upon the ascertainment of certain facts and conditions, and may delegate the duty to determine the existence of such facts to some other branch of the government.” In Village v. Baker it is said by the Supreme Court of the United States: “If the drainage laws of this state do not limit the burdens to the benefits derived, the entire acts are unconstitutional. The exaction, from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is to the extent of such excess a taking, under the guise of taxation, of private property for public use without compensation.” Other cases might be cited in support of the conclusion reached, but enough have been noticed to fortify the proposition, and none have been found which reach a contrary result. We are clearly of opinion that the trial court had jurisdiction of the appeal. We have already considered many such appeals, and, although the question was not raised in these cases, it was necessarily assumed that jurisdiction existed, else the cases would not have been considered.

The rule for such appeals has thus been stated: “In view of the fact already mentioned that these duties are in a large measure legislative in character, and the further obvious truth that the supervisors are on the ground where they can see and know .the situation as no one can see or know it from the written or printed testimony, we are of the opinion that the court should be very reluctant to interfere and set aside their order on the ground that the ditch is not a work of public utility, or its cost is a greater burden than the lands benefited should bear, unless the evidence in support of the objection is so clear as to render that conclusion unavoidable; and the burden of making such showing is on the party attacking the order.” Temple v. Hamilton Co., 134 Iowa, 706. See, also, Hartshorn v. Wright Co., 142 Iowa, 72, wherein it is said: “It is said', however, that the district court had power to reverse the action of the board, and that to this extent the decree should be upheld. Of course, the court had such power; but, as said in the Tempite case, supra, the court should be very reluctant to interfere with the action of the board upon appeal, and should do so only upon clear, satisfactory and convincing evidence that the ditch should be established.” But, as this is an appeal from the action of the district court which undoubtedly proceeded with these rules in mind, some weight should be attached to its findings because of its superior advantages to know the exact situation by reason of having the witnesses before it and an opportunity to know the very truth of the matter.

2. II. As already indicated, we shall not consider the alleged disqualification of one of the members of the board. [Regarding the claim that the board did not have sufficient information upon which to act and that the civil engineer did not make an adequate or sufficient report,' plat, and profile, we shall first quote the statute with reference thereto:

auditor, which returns shall set forth the starting point, the route, the terminus or termini of the said ditch or ditches, drain, or drains, or other improvements, together with a plat and profile showing the ditches, drains, or other improvements, and the course and length of the drain or “He shall make return of his proceedings to the county drains through each tract of land and the elevation of all lakes, ponds, and deep depressions in said district, and the boundary of the proposed district, and the description of each tract of land therein and names of the owners thereof as shown by the transfer books in the auditor’s office, together with the probable cost, and such other facts and recommendations as he may deem material.” Code Supp. 1907, section 1989-a2.

The engineer appointed by the board did not in his report give any elevations of any of the lands, ponds, or lakes, of depressions in the proposed district, and these were not added to the plat and profile until December 4, 1907, which was after the appeal had been taken to the district court. Moreover, the engineer did not make any estimate as to the expense involved in carrying the water from the various creeks emptying into the old channel of the river to the new channel, and had not, down to the time of trial, made any such estimates. In Zinser v. Board of Supervisors, 137 Iowa, 665, we said, in speaking of the engineer’s duty: “Unless he performs them, there is no assurance that the work will be prosecuted on scientific or economic lines. All interested have the right to know from him (1) whether in his opinion the improvement should be made, and, if so, (2) the character of such improvement; (3) the several tracts of land which will be affected and how each will be affected; (4) the probable cost of the improvement; (5) such other matters as he may deem material.” Again, in the same case, we said: “To fully reclaim these lands, it will be necessary to excavate several lateral ditches not provided for. What these would cost is not disclosed by the record before us. To completely reclaim the land, much of it must be tiled, and no estimate of the cost of this is to be found in the record. The probable expense of these necessarily must be taken into account, as the only estimate of the value of the lands after the improvement is as reclaimed, and to fully reclaim them tbe excavation of additional laterals and tile drainage is essential. Had tbe benefits to be derived from tbe construction of tbe improvement proposed alone been taken into account in stating tbe increased value of tbe land, tbe necessity of tbe evidence mentioned would bave been obviated. And there is always some risk as to the success of tbe enterprise not to be overlooked.” In Hartshorn v. Wright County, 142 Iowa, 72, it is said: “The ordinary member of a board of supervisors has no such knowledge pi tbe subject of drainage, plans, and districts, as to justify leaving this matter to bis judgment or discretion, arid it was a wise requirement which limited tbe board in its final action to some plan which was approved by a competent engineer. That point is clearly made in Zinser v. Board, 137 Iowa, 660. In that case it is said that a report and plat from an engineer is required for various purposes, which are therein set forth, and that, until the return of a plat is made and-recommended by him, tbe board should not order the construction of the proposed improvement.” This question was raised in tbe district court, but was not pointedly made in tbe objections filed before tbe board. It may be that for this reason tbe point should not bave been considered by tbe trial court. Yet as general objections were filed, and in these it was insisted that' tbe cost and expenses of constructing the ditch far exceeded tbe benefits arising therefrom, and were too expensive and burdensome to be borne by tbe owners of the land within the district, and tbe case on appeal was triable de novo in tbe district court, the fact that no reliable estimate as to tbe full cost of tbe improvement bad been made might under these objections be considered as a reason for not ordering tbe improvement and for reversing tbe order of tbe board of supervisors on the theory that it did not know, and could not ascertain, tbe cost and expense of tbe improvement. In other words, under tbe objections, it was competent for tbe remonstrants and objectors to urge, both before the board and the district court, that, because of the failure of the engineer to estimate the cost of carrying the water of the creeks into the new channel, the district should not be established because of the fact that this unknown expense added to the other estimate was more than the land should bear.

3‘ lishment of drainage district: expense: evidence. III. The last and only other proposition which we shall consider is simply one of fact. It is said that the finding of the board in the establishment of the improvement district should not have been disturbed by the trial court (1) for the reason that the board had better opportunity to deter-x x ° mine the matter than the district court; (2.) because the finding of the board should not be disturbed in the absence of a strong showing to the effect that it was and is erroneous; and (3) for the reason that the. proceeding, if not legislative in character, is essentially so, and the action of the board should not be reversed save upon a practically conclusive showing of error. We have already seen that the proceeding is not strictly legislative in character, and that the statute provides for a trial de novo upon appeal. On the other hand, we have established a rule governing such cases upon appeal, and to that we must adhere. -Going, then, to the merits of the case, we find that the estimated expenses of the improvement distributed ratably against the land supposed to be benefited without taking into account the unknown expense of conducting the water from the creeks into the new channel amounts to approximately ten dollars per acre. It will be observed, too, that this is not an ordinary drainage scheme. It involves the straightening of a very sinuous river carrying a considerable body of water. This river has been subject to periodic overflows, and at these times the entire river bottom is covered by a large amount of water. To accomplish its purpose, the new channel which is smaller than the natural one, must take care of this -unusual amount of water during flood times and take care of the water in sloughs, ponds, and bayous during the ordinary stages of water in the river. The great preponderance of the testimony shows that the proposed new channel will not do this. Unless it takes care of the overflow, it is practically conceded that the scheme will prove a failure, or, at least, will not render the land tillable. A flood or two of the ordinary size during a season will render the land nonarable. ' Moreover, there is no reason to believe that the new channel will drain out the sloughs and wet places. The river, flowing in its present channel, has not done so. No provision being made for the water coming down into the bottoms from the creeks, which flow into the old channel, the scheme, even on appellants’ theory, is incomplete. They insist that the old channel will be filled, as the new one is being broadened and deepened, from the deposit of silt and other substances carried in solution. If this be true, then the water coming from the creeks must either spread out over the bottom land or make new ■ channels which can not yell be foreseen, and for which adequate compensation can not be made in damages. The plans ■ seem to be incomplete' and unsatisfactory,- and the theories advanced as to what will happen in the future do not seem to be based upon any reliable experience.

Again, it is shown that much of the water which floods the south part of the proposed district does not come from the river, the channel of which it is proposed to change; but from creeks, which drain large areas, coming from the northeast and the northwest, and the proposed ditch would, of course, have little or no effect upon this accumulation of water. Doubtless the northern part of the district would, under the testimony, be benefited by this improvement, but the entire scheme is so incomplete, so problematical, and the expense so uncertain that we are inclined to agree with the district court in its holding that it should not have been approved and established.- Appellants contend that much of the testimony for appellees was and is incompetent, in that it called for the opinions and conclusions of nonexpert witnesses. With this we can not agree. Perhaps some of the testimony was not admissible; but a great' deal of it, of which appellant complains, was not only competent, but clearly the best and only evidence which could be produced. These witnesses were ’ old residents who were familiar with the river and the river bottoms, and who had observed the situation during floods as well as when the river was at its ordinary stages. It is true that these witnesses, in response to ’ direct questions calling for their opinions, -stated that the drainage district would be of no benefit, which, perhaps, it was incompetent for them to do, but they also gave the facts and figures upon which those opinions were based, which facts are, of course, proper to be considered by the court.

One other thought is worthy of consideration. The new -ditch crosses the old channel in something like thirty places. -For a time, and at least for three years according to one estimate, the old channel will continue to take care of a part of the water and the new of a part. As soon as the new enlarges so as to take care of a considerable part of the water the old will be converted into ponds and bayous, and the water therein will undoubtedly become stagnant or if not full of stagnant water, the old channel can not be farmed or utilized. The new will by that time have become larger and broader even than the old channel, and no saving will be obtained. That the new channel will not carry the floods which do the principal damage seems to be firmly established by the testimony. That it will not take care of the present ponds and bayous seems certain, and that the plan will create more bayous and ponds is quite clear.

On the whole record, we are constrained to hold that the'improvement district should not have been established as ordered. That another may 'he established which will cure all the evils which the proposed one will reach and at a small percentage of the expense seems reasonably clear.

The decree of the district court must be, and it is affirmed.