Lambert v. Mills County

12 N.W. 715, 58 Iowa 666

• Court: Supreme Court of Iowa
• Decided: June 12, 1882
• Status: Published

Opinion

Seevers, Ch. J.-

1. DITCH: vicinity: assessment of cost: appeal. What was to be accomplished by the construction of the ditch, the record fails to disclose with certainty, but we infer from the arguments of counsel ^ was located and constructed under the provisjons of § § 1207 to 1216, inclusive, of Miller’s Code. It does not appear the plaintiff was a petitioner for the ditch, or that the same was located on or through his land. The board of supervisors was authorized to make an equitable apportionment of the cost of the ditch and assess the same on the lands along the line, or in the vicinty, of the ditch. Miller’s Code, § 1214. The illegal or erroneous act complained of is based, as we understand, on the fact the board determined the plaintiff’s land was in the vicinity of the ditch, and .therefore should bear an equitable • portion of the cost of construction. No complaint is made of the amount of the assessment, if the land could be assessed at all. The question is, then, narrowed down to this: The board determined the land of the plaintiff was in the vicinity of the ditch, and he claims it was not, as contemplated by the statute. If it was not, then of course it should not have been taxed.

Vicinity does not mean adjoining to or abutting on, but near, close by, or neighboring country. The subject-matter to which the occasion for the use of the word requires it should be applied, should, to some extent at least, control its meaning as to nearness to or distance from. It is evident when the board was vested with the power to determine what land in the vicinity or neighborhood of the ditch should be assessed, with a portion of the cost of construction, a large discretion was reposed in the board as a local tribunal, who could see and examine the ground, and thereby more nearly attain the object and intent of the statute. In so doing, they would have the power to assess one parcel of land more, another less, and others not at all. Such being the power clearly, vested in the board, an appeal will not lie from its determination, unless the statute expressly or by necessary implicatior so provides.

Section 1216 of Miller’s Code, is as follows: “ The petitioners, or any of them, or the apjilicant for compensation for land taken, or for damages sustained by reason of the change of the direction of any water-course, may appeal from the order locating and establishing such ditch or drain, or changing the direction of such water-course or refusing to do so, and from the amount allowed as damages.” * * * .

The statute, in terms, provides that these classes of persons may appeal: First. The petitioners for the ditch or change in the direction of the water-course. Second '. The owner of land taken; and Third. Whoever is damaged because of the change in the direction of a water-course. .The plaintiff is not included in either of the foregoing classes, and the fact that an appeal is expressly allowed to> a class of persons only, is a strong argument that an implication cannot exist as to others. There is no other statute bearing on this subject, and therefore the appeal was properly dismissed.

No such question as the one before the court was presented or determined in Brandriff v. Harrison County, 50 Iowa, 164. The board had jurisdiction' and the power to determine the plaintiff’s land was in the vicinity of the ditch, and whether there is any remedy, if an erroneous conclusion is reached, is not before us. All that we hold is, that an appeal from the action of the board in the present case, is not allowed by statute.

Affirmed.