Hale, J.
This is an action in equity by plaintiffs who are owners of land outside of the Kennebec Drainage District in Monona County, Iowa, seeking to enjoin the Board Of Supervisors and the Sheriff of Monona County from condemning a right of way for the Kennebec drainage ditch through plaintiffs’ land, alleging it would be unfeasible, would result in irrevocable damages to plaintiffs, for which they would have no plain, speedy, or adequate remedy at law. Resistance was made by defendants as hereafter stated.
The Kennebec Drainage District was established by the Monona County Board of Supervisors November 1, 1945. Plaintiffs’ land is not included in the Kennebec district. It consists of a tract of 80 acres running north and south, being the West Half of the Northwest Quarter of Section 24, Township 84, Range 45. It lies south and a little to the west of the west line of the district. The land sought to be taken is a tract of approximately 2.84 acres, 1,800 feet in length, 60 feet in width, running northeast and southwest, and extending from a point near the northeast corner of plaintiffs’ land, and thence southwest to the Monona-Harrison ditch.
Proceedings for the condemnation of this outlet across plaintiffs’ land were instituted on April 1, 1946. Notice of condemnation was served, on plaintiffs fixing April 15, 1946, as the time of the appraisement. On April 5, 1946, however, plaintiffs filed a petition in equity asking that the condemnation be enjoined, stating in their petition (1) ownership (2) the application for condemnation and (3) alleging that such condemnation is sought to secure a right of way for a canal outlet for the Kennebec Drainage District so that it may discharge and outlet
its waters into tbe established Monona-Harrison drainage ditch.
Paragraph 3 of the petition proceeds to state that such purpose is not for a work of public utility inasmuch as defendants are attempting to conduct drainage waters westerly across plaintiffs’ lands in an unnatural and unfeasible manner, without regard to competent engineering principles and practices, and without there being a public necessity therefor, and solely as a matter of convenience and to please certain owners of lands to the north and east of plaintiffs’ land, and to avoid controversy with certain owners of land to the south and east of plaintiffs’ said lands.
Paragraph 4 alleges that if defendants were allowed to condemn said proposed right of way against said lands the same would be illegal and inequitable and without any right and would work irrevocable hardship and damage upon the plaintiffs, for which the plaintiffs would have no plain, speedy, or adequate remedy at law. In the remainder of their petition they ask for equitable relief by injunction.
The petition was resisted by the defendants who alleged that the Kennebec Drainage District was duly established according to law on plans and specifications of the engineer, approved and confirmed by the Board of Supervisors of Mo-nona County, and that they could not now be assailed; and further resisting, that such proceedings were legal and proper and that plaintiffs had an adequate remedy at law. Defendants further alleged that there were no equitable grounds for relief and plaintiffs .will receive such damages and redress as they are entitled to.
It will be observed that nowhere in the first three paragraphs of plaintiffs’ petition is there any claim that the procedure was contrary to law. Only in paragraph 4 is it alleged that the condemnation would be illegal and inequitable. Nowhere is it specifically pleaded or claimed that the procedure is incorrect. There was a hearing on plaintiffs’ petition for injunction on April 11, and on April 15, 1946, the court entered its judgment and decree finding that the regularity of the proceedings to establish the drainage ditch, or the condemnation, were not challenged by plaintiffs, and the pleadings
and evidence were confined solely to the question of feasibility.
The court determined that to hold for the plaintiffs it must find:
“(1) That the Court under the existing record has authority to intercede and substitute its judgment on the feasibility of the project for the judgment of the engineer in charge and the Ditch Trustees. (2) That lack' of feasibility of the proposed canal has been established by evidence. (3) That the plaintiffs have not a complete and adequate remedy at law. ” ■
The court stated that it failed- to find for the plaintiffs on any of the propositions above set out and dismissed plaintiffs’ petition.
We áre unable to find in the pleadings or proceedings in the district court that the proper form of procedure is otherwise challenged than is stated. It would be of no practical value to set out, in detail, the evidence submitted on the trial. Testimony was offered both for and against the feasibility of the route selected for the outlet. We find it unnecessary to consider or rule upon this question.
Plaintiffs-appellants challenge the decision of the court: First, on the ground that “the Court attempted to make a determination of the issues without any finding as to whether defendants’ procedure in establishing a new drainage district, which did not include plaintiffs’ land situated adjacent-thereto and of which no notice or opportunity to be heard was given the plaintiffs, and thereafter attempting to construct said new ditch on plaintiffs’ lands by invoking eminent domain, was legal and equitable, and therefore there was no complete adjudication of the issues by the Court. ’ ’ Second, the court erroneously found that it did not have the authority to pass upon the feasibility' of the proposed route of the outlet sought to be condemned for the new Kennebec drainage ditch, and then inconsistently and erroneously held that plaintiffs had failed to establish lack of feasibility of the proposed Kennebec ditch outlet. Third, the court was in error in finding plaintiffs had complete and adequate remedy at law.
I. It is not necessary to consider or rule upon tbe first and second propositions urged by plaintiffs for reversal. Tbe parties stated, in argument, that there is an appeal from tbe condemnation now pending in tbe district court. We therefore consider at this time tbe question whether or not injunction was tbe proper procedure.
Since we bold tbe power of tbe Board to inaugurate condemnation proceedings is not questioned under tbe record, we have the one question to answer: May equity enjoin tbe proceedings on tbe ground tbe “purpose is not for a work of public utility,” tbe proposed outlet is not feasible and tbe proposed action of tbe Board is “without regard to competent engineering principles and practices”?
It is to be remembered this is not an appeal from a decision in condemnation proceedings but a suit to enjoin condemnation proceedings. Tbe invoked jurisdiction of tbe district court was not appellate but original and equitable. In order "to succeed, plaintiffs bad to show some equitable ground to justify equitable interference with pending proceedings.
Even in appeals from condemnation judgments it is conceded that determination of tbe necessity for taking property for public use is a legislative and not a judicial function. Bennett v.
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Hale, J.
This is an action in equity by plaintiffs who are owners of land outside of the Kennebec Drainage District in Monona County, Iowa, seeking to enjoin the Board Of Supervisors and the Sheriff of Monona County from condemning a right of way for the Kennebec drainage ditch through plaintiffs’ land, alleging it would be unfeasible, would result in irrevocable damages to plaintiffs, for which they would have no plain, speedy, or adequate remedy at law. Resistance was made by defendants as hereafter stated.
The Kennebec Drainage District was established by the Monona County Board of Supervisors November 1, 1945. Plaintiffs’ land is not included in the Kennebec district. It consists of a tract of 80 acres running north and south, being the West Half of the Northwest Quarter of Section 24, Township 84, Range 45. It lies south and a little to the west of the west line of the district. The land sought to be taken is a tract of approximately 2.84 acres, 1,800 feet in length, 60 feet in width, running northeast and southwest, and extending from a point near the northeast corner of plaintiffs’ land, and thence southwest to the Monona-Harrison ditch.
Proceedings for the condemnation of this outlet across plaintiffs’ land were instituted on April 1, 1946. Notice of condemnation was served, on plaintiffs fixing April 15, 1946, as the time of the appraisement. On April 5, 1946, however, plaintiffs filed a petition in equity asking that the condemnation be enjoined, stating in their petition (1) ownership (2) the application for condemnation and (3) alleging that such condemnation is sought to secure a right of way for a canal outlet for the Kennebec Drainage District so that it may discharge and outlet
its waters into tbe established Monona-Harrison drainage ditch.
Paragraph 3 of the petition proceeds to state that such purpose is not for a work of public utility inasmuch as defendants are attempting to conduct drainage waters westerly across plaintiffs’ lands in an unnatural and unfeasible manner, without regard to competent engineering principles and practices, and without there being a public necessity therefor, and solely as a matter of convenience and to please certain owners of lands to the north and east of plaintiffs’ land, and to avoid controversy with certain owners of land to the south and east of plaintiffs’ said lands.
Paragraph 4 alleges that if defendants were allowed to condemn said proposed right of way against said lands the same would be illegal and inequitable and without any right and would work irrevocable hardship and damage upon the plaintiffs, for which the plaintiffs would have no plain, speedy, or adequate remedy at law. In the remainder of their petition they ask for equitable relief by injunction.
The petition was resisted by the defendants who alleged that the Kennebec Drainage District was duly established according to law on plans and specifications of the engineer, approved and confirmed by the Board of Supervisors of Mo-nona County, and that they could not now be assailed; and further resisting, that such proceedings were legal and proper and that plaintiffs had an adequate remedy at law. Defendants further alleged that there were no equitable grounds for relief and plaintiffs .will receive such damages and redress as they are entitled to.
It will be observed that nowhere in the first three paragraphs of plaintiffs’ petition is there any claim that the procedure was contrary to law. Only in paragraph 4 is it alleged that the condemnation would be illegal and inequitable. Nowhere is it specifically pleaded or claimed that the procedure is incorrect. There was a hearing on plaintiffs’ petition for injunction on April 11, and on April 15, 1946, the court entered its judgment and decree finding that the regularity of the proceedings to establish the drainage ditch, or the condemnation, were not challenged by plaintiffs, and the pleadings
and evidence were confined solely to the question of feasibility.
The court determined that to hold for the plaintiffs it must find:
“(1) That the Court under the existing record has authority to intercede and substitute its judgment on the feasibility of the project for the judgment of the engineer in charge and the Ditch Trustees. (2) That lack' of feasibility of the proposed canal has been established by evidence. (3) That the plaintiffs have not a complete and adequate remedy at law. ” ■
The court stated that it failed- to find for the plaintiffs on any of the propositions above set out and dismissed plaintiffs’ petition.
We áre unable to find in the pleadings or proceedings in the district court that the proper form of procedure is otherwise challenged than is stated. It would be of no practical value to set out, in detail, the evidence submitted on the trial. Testimony was offered both for and against the feasibility of the route selected for the outlet. We find it unnecessary to consider or rule upon this question.
Plaintiffs-appellants challenge the decision of the court: First, on the ground that “the Court attempted to make a determination of the issues without any finding as to whether defendants’ procedure in establishing a new drainage district, which did not include plaintiffs’ land situated adjacent-thereto and of which no notice or opportunity to be heard was given the plaintiffs, and thereafter attempting to construct said new ditch on plaintiffs’ lands by invoking eminent domain, was legal and equitable, and therefore there was no complete adjudication of the issues by the Court. ’ ’ Second, the court erroneously found that it did not have the authority to pass upon the feasibility' of the proposed route of the outlet sought to be condemned for the new Kennebec drainage ditch, and then inconsistently and erroneously held that plaintiffs had failed to establish lack of feasibility of the proposed Kennebec ditch outlet. Third, the court was in error in finding plaintiffs had complete and adequate remedy at law.
I. It is not necessary to consider or rule upon tbe first and second propositions urged by plaintiffs for reversal. Tbe parties stated, in argument, that there is an appeal from tbe condemnation now pending in tbe district court. We therefore consider at this time tbe question whether or not injunction was tbe proper procedure.
Since we bold tbe power of tbe Board to inaugurate condemnation proceedings is not questioned under tbe record, we have the one question to answer: May equity enjoin tbe proceedings on tbe ground tbe “purpose is not for a work of public utility,” tbe proposed outlet is not feasible and tbe proposed action of tbe Board is “without regard to competent engineering principles and practices”?
It is to be remembered this is not an appeal from a decision in condemnation proceedings but a suit to enjoin condemnation proceedings. Tbe invoked jurisdiction of tbe district court was not appellate but original and equitable. In order "to succeed, plaintiffs bad to show some equitable ground to justify equitable interference with pending proceedings.
Even in appeals from condemnation judgments it is conceded that determination of tbe necessity for taking property for public use is a legislative and not a judicial function. Bennett v. City of Marion, 106 Iowa 628, 630, 76 N. W. 844; Barrett v. Kemp, 91 Iowa 296, 59 N. W. 76; Brush v. Incorporated Town of Liscomb, 202 Iowa 1155, 211 N. W. 856; Denny v. Des Moines County, 143 Iowa 466, 121 N. W. 1066. And it is held tbe discretion of the condemning body may not on appeal be reviewed by the court when such body acts within tbe authority given and its determination is fairly made without fraud or oppression. Brush v. Incorporated Town of Liscomb, supra; Chicago G. W. Ry. Co. v. City of Mason City, 155 Iowa 99,135 N. W. 9. See, also, Temple v. Hamilton County, 134 Iowa 706, 112 N. W. 174. The court in such eases, however, will act to prevent abuse of power or its exercise beyond tbe requirements of public use. Bennett v. City of Marion, supra; In re Condemnation of Certain Land, 230 Iowa 1069, 300 N. W. 287.
In all such eases tbe court acts in an appellate capacity in its relation to tbe condemnation proceedings, its power to review being circumscribed only by the presumption in favor of the action of tbe condemning body in exercising its legislative discretion.
But before a court of equity may enjoin such proceedings it must be made to appear that the condemning board or body is acting illegally or beyond its jurisdiction; Something more than mere error must be shown — some equitable ground such as fraud, illegality, or want of power. See Minear v. Plowman, 197 Iowa 1188, 197 N. W. 67; Long v. State Highway Comm., 204 Iowa 376, 213 N. W. 532; Hoover v. Iowa State Highway Comm., 207 Iowa 56, 222 N. W. 438; Forbes v. Delashmutt, 68 Iowa 164, 168, 26 N. W. 56.
“In any ease, the exercise of the power of eminent domain by a governmental body may not be stayed or interfered with by injunction in the absence of fraud, abuse of discretion, or other gross impropriety, or unless the owner is in some way illegally deprived of his rights in violation of the constitutional or statutory provisions governing the exercise of the power of eminent domain.” 30 C. J. S., Eminent Domain, section 401.
We find here no ground of equitable jurisdiction that would justify judicial review of the defendant Board’s exercise of discretion in determining the question of feasibility and public utility. In the state of the record as we find it, whatever remedy plaintiffs may have is available to them in the condemnation proceedings.
II. We call attention also to the fact that it was stated in oral argument, and not denied, that the construction had already taken place and that the canal or ditch was in operation. There was no stay of proceedings nor application in this court for an order to stay construction. Under these circumstances the construction of the ditch became an established fact before the case was submitted to us for decision. See Welton v. Iowa State Highway Comm., 208 Iowa 1401, 227 N. W, 332,
For the reasons stated the holding of the district court in denying the injunction is therefore affirmed. — Affirmed.
Oliver, O. J., and Smith and Mantz, JJ., concur.
Garfield, J., concurs in result.
Mulroney, Bliss, and Hays, JJ., dissent.
Garfield, J., joins in Division II of dissent.