CourtListener 2717598

IN THE COURT OF APPEALS OF IOWA

No. 13-0929
Filed August 13, 2014

PHILIP NAEVE, MARILYNNE J. NAEVE,
KYNDRA NAEVE WALTON, CAMILLE
NAEVE URBAN, NAEVE FARM, INC.,
and THE PHILIP & MARILYNNE
NAEVE TRUST,
Plaintiffs-Appellants,

vs.

HUMBOLDT COUNTY DRAINAGE
DISTRICT #126, HUMBOLDT COUNTY
BOARD OF SUPERVISORS and ITS
MEMBERS, HARLEY HETT, JERRY
HAVERLY, HARLAN HANSEN, JOHN
M. CHRISTIANSON and CARL MATTES,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Humboldt County, Joel E.

Swanson, Judge.

Landowners appeal from the district court’s order upholding the

establishment of a drainage district and assessments against the landowner.

AFFIRMED.

Camille Urban and Jonathan M. Gallagher of Brown, Winick, Graves,

Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for appellants.

David R. Johnson of Brinton, Bordwell & Johnson, Clarion, for appellees.

Heard by Vogel, P.J., and Doyle and Mullins, JJ.
2

MULLINS, J.

Landowners appeal from a district court decision denying their petition to

set aside the establishment of a drainage district and to reclassify lands to

reduce their assessment of costs. The county board of supervisors contends the

landowners waived their arguments against the drainage district by failing to

raise them before the board. The board also contends the classification and

assessment are valid and should be affirmed. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

A. Establishment of Drainage Districts.

“The purpose of drainage districts is to build and maintain drainage

improvements that provide for the drainage and improvement of agricultural and

other lands, thereby making them tillable or suitable for profitable use.” Hardin

Co. Drainage Dist. 55, Lateral 10 v. Union Pac. R. Co., 826 N.W.2d 507, 510

(Iowa 2013) (internal quotation and citation omitted). “To achieve this goal,

counties may establish a drainage district and construct whatever drainage

improvement is necessary for the public health, convenience, or welfare.” Id.

County boards of supervisors have authority to establish and maintain

drainage districts through the procedure set out in Iowa Code chapter 468. Two

or more owners of the land in question must file a petition with the county auditor

setting forth the details of the proposed drainage district, including the lands to be

enclosed in the district. See Iowa Code §§ 468.6 and .8. The county board of

supervisors then must, at its next session, examine and find the filed petition

“sufficient in form and substance.” See Iowa Code § 468.10.
3

If the board does so, it must appoint a “disinterested and competent” civil

engineer. Id. The engineer must survey the lands described in the petition and

file a report to the board setting forth the specific details of the proposed district,

including its exact location, plans for its construction, and the probable costs.

See Iowa Code § 468.12. Upon filing of the engineer’s report recommending the

drainage district, the board must examine and consider the report before formally

adopting or approving it. See Iowa Code § 468.13. Approval of the report

constitutes a “tentative plan only” for the establishment of the drainage district.

See Iowa Code § 468.14.

The board then must set a date for a public hearing on the petition to

establish the district not less than forty days from the date of their approval of the

engineer’s report. Id. The board must instruct the county auditor to provide

notice to the owners whose land is implicated in the petition, as well as all other

persons whom the petition may concern. Id. Notice must be of the pendency of

the petition, the favorable engineer’s report, and the day and hour of the hearing

and must inform parties that all claims and objections must be “made in writing

and filed in the office of the auditor at or before the time set” for the hearing. Id.

Notice must be given not less than twenty days prior to the date set for the

hearing. See Iowa Code §§ 468.15-.16. Parties may waive notice by filing a

statement to that effect with the auditor. See Iowa Code § 468.18.

At the date and time set for hearing, the board will hear the petition and

determine its sufficiency as to form and substance, and all objections filed

against the establishment of the district. See Iowa Code § 468.21. If the board
4

determines the district is not in the public interest, it shall dismiss the petition. Id.

If the board finds the petition “complies with the requirements of law in form and

substance,” that the district would be “conducive to the public health,

convenience, welfare, benefit, or utility,” that the cost is not excessive, and no

claims have been filed for damages, it may establish the district consistent with

the engineer’s report. See Iowa Code § 468.22.

Interested landowners may file objections or remonstrances1 to the

establishment of the drainage district. See Iowa Code §§ 468.19, .21, and .28. If

a majority of the interested landowners, owning in aggregate seventy-percent or

more of the lands in question, file with the county auditor a signed remonstrance

against the establishment of the district, the board shall dismiss the proceedings.

See Iowa Code § 468.28. Any party failing to file a claim or objections to the

establishment of the district “at or before the time fixed for said hearing . . . shall

be held to have waived all objections and claims[.]” See Iowa Code § 468.19.

Once the district has been established, the board must appoint three

classification commissioners to determine the benefits, classify the lands, and

apportion and assess the costs associated with the district among the various

parties. See Iowa Code § 468.38. The commissioners must include one

competent civil engineer and two landowners in the county who do not have an

interest in any of the included lands. Id. These commissioners must prepare

their conclusions in a detailed report filed with the county auditor. See Iowa

1
A “remonstrance” is: “1. A presentation of reasons for opposition or grievance. 2. A
formal document stating reasons for opposition or grievance. 3. A formal protest against
governmental policy, actions, or officials.” Black’s Law Dictionary 1409 (9th ed. 2009.)
5

Code § 468.44. The board then must provide for notice of a public hearing to be

served upon the interested parties in the same manner as provided for the

establishment of the district. See Iowa Code § 468.45. At the hearing, the board

must hear and determine all objections properly filed and may make such

adjustments to the benefits and apportionments of cost as appear to the board to

be just and equitable. See Iowa Code § 468.46.

Landowners may take an appeal from the establishment of the district

itself or the classification and assessment. See Iowa Code § 468.83. These

appeals are effected by petition to the district court of the county wherein the

proceeding was held. Id.

B. Drainage District Number 126.

This case arises from the 2010 establishment of Drainage District Number

126 in Humboldt County. Thirty years prior to the events described here, Philip

Naeve installed drainage tile to serve his farmland in sections eleven and

fourteen of Corinth Township in Humboldt County. In 2010, Humboldt

Community School District constructed a new school in section eleven. With the

increased paved area, the county determined it needed to provide for the

additional water run-off and sought to establish a drainage district. On July 6,

2010, a Humboldt Community School District employee and an adjacent

landowner filed petitions with the county auditor to establish the drainage district.

On July 12, 2010, the Board of Supervisors found the petitions to be sufficient

and appointed an engineer to prepare a report. The subsequent events are in

dispute. The defendants in these actions, collectively the “Board,” assert the
6

Board at its September 20, 2010 meeting approved the engineer’s report, set a

public hearing date, and directed the county auditor to serve the necessary

notices. The Board set the hearing date for November 8th at 9:00 a.m., more

than forty days from their approval of the engineer’s report. The plaintiffs in

these actions, collectively the Naeves, assert the Board only accepted the

engineer’s report at the November 8th meeting, thus violating the chapter 468

notice requirements. The Board published notice of the public hearing in the

local newspaper on October 21, concededly only nineteen days before the

hearing. It also mailed notices to the affected landowners,2 and Philip Naeve

acknowledged in testimony that he received the notice by mail. The notice stated

in relevant part: “[A]ll objections to the establishment of said drainage district for

any reason, must be made in writing and filed in the office of the Humboldt

County Auditor at, or before, the time set for such hearing, November 8, 2010, at

9:00 o’clock a.m. in central standard time.”

At 9:00 a.m. on November 8, at the start of the public hearing, there were

no written objections or remonstrances on file with the county auditor. The

engineer explained the proposed plan. Members of the public and interested

landowners who were present, including the Naeves, were permitted to make

statements to the Board. About one hour into the Board meeting, a Board

member asked when was the time for remonstrance. The county’s drainage

attorney advised the Board the deadline for filing a remonstrance was the start of

the hearing and thus had passed. The Board then voted to approve the

2
The record does not reflect when precisely the auditor mailed the notices.
7

engineer’s report for the second time. Then, Philip Naeve asked when he would

be able to appeal the Board’s decision, to which a Board member replied, “You

can definitely appeal it, yes.” The Board’s counsel then clarified the Naeves

could appeal from the establishment of the district, not from the Board’s approval

of the report. He also clarified the Naeves could appeal from the classifications

and assessments, once the Board approved them.

The Board recessed until 10:30 a.m. and at that time sought a final vote

on the establishment of the drainage district. The Board took comments from the

public in attendance. The Board then voted in favor of the establishment of the

district. On November 23, the Naeves filed a petition requesting the district court

set aside the Board action and declare the drainage district void.

Pursuant to chapter 468, the Board appointed commissioners to classify

the lands and apportion costs. The commissioners surveyed the land and

submitted their report. On June 6, 2011, the Board held a public hearing to

examine and adopt the report and hear objections. The Naeves and several

other landowners filed timely objections and appeared for the hearing. Following

the hearing, the Board requested the commissioners reexamine the

classifications and the public objections. The commissioners did so and returned

to the Board concluding their original assessments were accurate.3 The Board

thus made no alterations and adopted the commissioners’ assessments. The

result of the assessments was that the Naeves were required to pay around

$57,000 in costs for the establishment of the drainage district. The Naeves filed

3
Altogether, the Board met with the engineer and commissioners three times before
approving the assessments.
8

another petition, seeking a reassessment and a reduction in their apportionment

of costs.

The district court consolidated the two actions (first, the petition to declare

the drainage district void and second, the petition for reassessment) for trial. The

Naeves raised several issues: deficiencies in the petitions to establish the district;

deficiencies in the notice; the Board’s failure to allow a remonstrance; and the

classification and apportionment of costs to the Naeves. The district court denied

the petitions finding the Board substantially complied with the requirements of

chapter 468 and correctly adopted the assessments. The court also found the

Naeves failed to file a timely remonstrance as required under the chapter. The

Naeves appeal from these decisions.

II. STANDARD OF REVIEW.

Where a landowner affected by the establishment of a drainage district

appeals from a board of supervisor’s decision, the action is in equity. Hicks v.

Franklin Cnty. Auditor, 514 N.W.2d 431, 435 (Iowa 1994). Thus, our review is de

novo. Iowa R. App. P. 6.907. Drainage statutes should be liberally construed for

the public benefit. Hicks, 514 N.W.2d at 435.

III. ANALYSIS.

The Naeves make three arguments on appeal. First, the district court

erred in upholding the drainage district by finding the Board substantially

complied with the statutory requirements as to the petition, the engineer’s report,

and notice. In particular, the Naeves argue failure to adhere strictly to the

statutory requirements of the notice and the engineer’s report rendered the board
9

without jurisdiction to establish the drainage district. Second, the district court

erred in finding the Naeves’ remonstrance untimely. Third, the district court erred

in finding the commissioners were appointed appropriately and that the

commissioners used the appropriate mechanisms for the classifications and

assessments. The Board contends the Naeves waived their arguments on

compliance with the statutory requirements, thus, we address the jurisdiction and

waiver issues first. We then address the remaining arguments.

A. Jurisdiction and Waiver.

The Naeves contend the alleged failure to comply with the statutory

requirements deprived the Board of jurisdiction to establish the district. They

allege deficiencies in the Board’s compliance with statutory requirements

regarding notice and the engineer’s report.

The Naeves assert generally, “[S]trict compliance, particularly in the

formation of drainage districts, requires full adherence to each statutory

requirement.”4 They cite Simpson v. Board of Supervisors of Kossuth County,

162 N.W. 824 (Iowa 1917), for the proposition that the board lacked jurisdiction

based on the engineer’s report. In Simpson, an engineer’s report failed to

4
The Naeves assert strict compliance with the statutory requirements is required. The
supreme court most recently addressed the standard of compliance relating to
establishing and maintaining drainage districts in Hicks, 514 N.W.2d at 435, where it
stated:
When reviewing drainage proceedings of boards of supervisors we have
applied three principles: the drainage statutes shall be liberally construed
for the public benefit; strict compliance with statutory provisions is
required to establish a drainage district, while substantial compliance is
sufficient as to repairs or improvements; and the procedural requirements
should be too technically construed.
The case before us does not require a discussion or application of any particular
standard of compliance and we decline to address it further at this time.
10

specify the proposed width of a certain right of way. 162 N.W. at 825.

Appraisers for the district estimated the width would be eighty-five feet and

assessed damages accordingly. Id. The board notified interested landowners,

approved the report, and established the district. Id. Later, during excavations,

the engineer determined the right of way would have to be 120 feet wide. Id.

The board, upon the engineer’s recommendation and without informing the

property owners, approved a resolution increasing the width. Id. at 826. The

court stated:

The engineer appointed for the designated purpose must set forth
in his report the exact width, boundaries, and location of the right of
way required. . . . The report of an engineer recommending the
proposed drainage improvement is jurisdictional, and as to such
matters the statute is mandatory and must be strictly followed.

Id. at 827. It further determined, “[T]he board [was] limited to the establishment

of the improvement as recommended” and was “wholly without authority to

appropriate the 35-foot strip in the way attempted.” Id. at 826. Thus, boards do

not have authority to deviate from the engineer’s report in establishing a drainage

district without first observing the same procedural requirements for establishing

or modifying the district. Here, there is no allegation that the board attempted to

deviate from the engineer’s report as filed. Thus, there is no jurisdictional defect

in the board’s action stemming from the engineer’s report.

The Naeves further contend the Board’s failure to strictly conform to the

statutory requirements of notice rendered it without jurisdiction to establish the

drainage district. Indeed, our supreme court has found that failure to provide

notice deprived boards of supervisors of jurisdiction with respect to drainage
11

districts. See, e.g., Minneapolis & St. L.R. Co. v. Bd. of Supervisors of Marshall

Cnty., 201 N.W. 14, 14 (Iowa 1924). In Minneapolis, a county failed to provide

notice to an interested landowner at the address the landowner had designated

for such purposes. Id. at 14. The landowner did not appear or take any part in

the proceedings until he was notified of the assessments against him for

establishment of the district. Id. Contrary to the board’s arguments, our supreme

court held this was not “merely a defective notice,” but because the board

“entirely neglected” to notify the landowner, it had acquired no jurisdiction over

him and the district was void. Id. at 15. In Chicago & N.W. Ry. Co. v. Sedgwick,

213 N.W. 435, 436 (Iowa 1927), a county board of supervisors failed to provide

notice to a railroad’s designated agent, who did not participate in the

proceedings. The supreme court found the board did not obtain jurisdiction over

the railroad. Id.

Similarly, in Ioerger v. Schumacher, 203 N.W.2d 572, 573 (Iowa 1973), a

county board of supervisors gave notice of a proposed drainage district to a

tenant on the land, rather than its minor owners and their conservator. Id. Our

supreme court again found the board lacked jurisdiction as to the minor owners,

and the assessment of costs was void.5 Id. at 576. Here, the alleged defects in

notice do not rise to the same level. Although the notice was published one day

late, the alleged deficiencies did not rise to the level of a total failure or “entire

neglect” to notify. The Naeves were notified of the hearing, appeared, and

discussed the drainage district with the Board. Their complaint is simply

5
This was true, notwithstanding the tenant on the land was the minors’ father. Ioerger,
203 N.W.2d at 573.
12

technical; they do not complain that they were harmed in any way by the one-day

delay. See Hicks, 514 N.W.2d at 435 (procedural requirements should not be

too technically construed). We reject the Naeves’ contention that the Board

lacked jurisdiction over them based on the alleged notice deficiencies.

The Naeves present a number of procedural and substantive defects

arising in the course of establishing the drainage district, including defects in the

content of the original petitions, the notice, and the engineer’s report. They

contend the Board was required to comply strictly with the statutory requirements

and, having failed to do so, their decision to establish the drainage district is void.

The Board argues the Naeves’ objections must be deemed waived pursuant to

Iowa Code section 468.19, which states:

Any person, company, or corporation failing to file any claim for
damages or objections to the establishment of the district at or
before the time fixed for said hearing, except claims for land
required for right of way, or for settling basins, shall be held to have
waived all objections and claims for damages.

(Emphasis added.) By failing to file any written objections “at or before the time

fixed” for the hearing, the Board argues, the Naeves waived any claims as to

procedural or substantive deficiencies in the establishment of the district.

The Naeves respond they could not have waived their objections because

the Board’s notice was deficient in failing to inform them the consequence of

failing to objection would be waiver. They cite Mammel v. M & P Missouri River

Levee Dist., 326 N.W.2d 299, 302 (Iowa 1982), where our supreme court

determined the following elements of notice are essential:

(1) The notice must inform affected parties of the nature of the
project.
13

(2) It must inform affected parties that their land is involved.
(3) It must inform them of their right to object or file claims for
damages and the consequences of their failure to do so.
(4) It must inform them of the time and place of any required public
hearing.

(Internal citations omitted.) The Naeves assert notice was defective in failing to

inform the landowners that objections not raised before the Board would be

deemed waived.

In Simpson, the appealing landowner made a number of objections before

the board of supervisors. 162 N.W. at 826. However, on appeal to the district

court, he argued additional complaints about the engineer’s report not previously

raised. Id. The supreme court held

Upon appeal from the order of establishment every objection urged
against the proposed scheme of drainage may be reviewed and
passed upon by the district court upon the hearing of such appeal,
but only such objections as we made before the boards of
supervisors, will be considered by the district court.

Id. at 827. The court found, because the landowner failed to object before the

board regarding the report, those complaints were waived. The court further

found, had the landowner raised the objections properly, the board could have

directed the engineer to amend his report or otherwise remedy the asserted

defects.

Failure to object also can result in waiver of errors in notice. In Lightner v.

Board of Supervisors of Greene County, 123 N.W. 749, 753 (Iowa 1909), a board

of supervisors published notice for one week rather than the required four. Our

supreme court found with respect to an alleged defective notice, “[A]s no such

objection was made before the Board it must be considered as waived. . . .
14

[W]here a notice is given, defects therein must be pointed out in the objections

filed with the Board.” Id. Such arguments “are waived unless they are presented

to the proper tribunal and in the manner pointed out by statute.” Id. Here, the

Naeves were notified of the hearing, appeared, were told that time had passed

for remonstrance, did not object to being told time had passed, and stated their

concerns about the project to the Board. Chapter 468 and applicable case law

are clear that failure to file an objection at or before the time fixed for the

establishment hearing is a waiver of all objections. See Iowa Code § 468.19. It

is not unreasonable to charge objecting landowners—who had notice—with

knowledge of the statutory procedures. Such a charge is consistent with the

purpose of notice, to safeguard a landowner’s right to be informed of the hearing

and to object. The right to notice does not encompass the right to be informed of

all one’s rights and interests in a matter. At the time of the establishment

hearing, there were no written objections on file with the county auditor. If there

were any deficiencies in the petitions, engineer’s report, or notice, they should

have been raised at that time, while the Board was able to remedy deficiencies

by amending the petitions, ordering the engineer to amend the report, or

continuing the hearing to provide sufficient notice. Because the Naeves did not

raise their jurisdictional objections at the designated time, they are waived, and

we do not address them.6 See Simpson, 162 N.W. at 827.

6
The Naeves raised one notice issue orally before the Board as well as on appeal. The
Naeves contend the auditor should have sent a copy of notice to the City of Humboldt.
Iowa code section 468.15 does indicate, “Copy of the notice shall also be sent by
ordinary mail . . . to the clerk or recorder of each city named in the notice[.]” The Board
15

B. Remonstrance Argument.

The Naeves contend the district court erred in finding there was no timely

filed remonstrance at the time of the establishment hearing. The Naeves blame

misleading statements of drainage counsel that the time for filing a remonstrance

had passed and of a Board member that the Naeves could file an appeal later.

The Naeves assert the Board refused to allow them to file a remonstrance, even

though they were prepared to do so. Although the video recording of the public

hearing reflects that drainage counsel did state the time for filing a

remonstrance—the beginning of the hearing—had passed, nothing in the video

shows the Board refusing to accept a prepared written remonstrance.

Iowa Code section 468.28 provides, “If, at or before the time set for final

hearing as to the establishment of a proposed levee, drainage, or improvement

district. . . there shall have been filed with the county auditor. . . a remonstrance

signed by a majority of the landowners in the district” who in aggregate own

seventy percent or more of the land, the Board must dismiss the petitions to

establish. At the time set for the final hearing, November 8, 2010, at 9:00 a.m.,

no remonstrance had been filed. The Naeves did eventually file a remonstrance

in April 2012, nearly one and a half years later.

The Naeves further argue that the Board approved the engineer’s report

only at the November 8 hearing. They assert this approval should have triggered

the forty-day waiting period before they held another hearing to vote on the

establishment of the district. See Iowa Code section 468.14. Thus the Naeves

responds the Naeves do not have standing to assert notice was not served on other
parties, and we agree.
16

argue they had until the time of that hearing to file a remonstrance. At the

November 8 hearing, during the 9:00 a.m. session, the Board did vote to approve

the engineer’s report, however, the Board had already approved the report once

before on September 20. This is reflected in the Board’s minutes from the

September 20 meeting. Further, a Board member testified at trial the Board

approved or accepted the engineer’s report on that day, scheduled the public

hearing on establishment with the forty-day rule in mind, and directed the county

auditor to serve notice. The notice sent out to the landowners also stated that

the Board “on the 20th day of September, 2010, approved the Engineer report[.]”

Thus, the forty-day requirement ran from the September 20 Board meeting and

the November 8 9:00 a.m. public hearing on establishment was the deadline for

filing a remonstrance. Accordingly, we find the Naeves’ arguments fail. They did

not file a remonstrance by the required time. The April 2012 remonstrance was

untimely by a year and a half.

C. Classification and Assessment.

1. Classification Commissioner Qualifications.

The Board appointed the same engineer and two non-engineer

commissioners to prepare the classifications and assessments. The Naeves

contend the non-engineer commissioners were appointed inappropriately. Iowa

Code section 468.24 provides once the board votes to establish the district, it

shall appoint three commissioners to assess benefits and classify
the lands affected by the improvement. One of the commissioners
shall be a competent civil engineer and two of them shall be
resident freeholders of the county in which the district is located,
but not living within, nor interested in, any lands included in the
17

district, nor related to any party whose land is affected by the
district.

The Naeves argue the two lay classification commissioners were appointed

inappropriately because, as taxpayers living within and financially supporting the

school district, they had an interest in project and met the definition of “related to”

an affected party, the school district.7 Eight written objections were timely filed

before the hearing on the classification of lands. The Board heard comments

from the objectors at the classification hearing and decided to “have the

Commissioners take another look at the classifications and resubmit the report

after consideration of the objections.” Having done so, the Commissioners

concluded their original classifications were correct, made no alterations, and

resubmitted their report, which the Board approved. The Naeves had not

objected to the qualifications of the commissioners. Nor did the Naeves raise the

qualifications of the commissioners on their petition to the district court; therefore

the district court did not rule on the issue. “It is a fundamental doctrine of

appellate review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.” Kramer v. Bd. of

Adjustment, 759 N.W.2d 86, 93 (Iowa Ct. App. 2010). Accordingly, we do not

address their qualifications argument.

2. Mechanisms for Classification.

The Naeves also contend the classification commissioners failed to apply

the correct mechanisms for classification and assessment. They assert the

7
See Bluffs Dev. Co., Inc. v. Bd. of Adjustment of Pottawattamie Cnty., 499 N.W.2d 12,
14-18 (Iowa 1993).
18

commissioners assessed them an excessive portion of the cost. The total cost of

the project was around $300,000, of which the Naeves were required to pay

around $57,000. The Naeves first argue the district court failed to recognize the

taking of their prior improvements and properly compensate them for the taking.

However, they failed to raise this issue in their petition before the district court

and cannot raise it for the first time upon appeal. See id.8

The Naeves assert various errors in the commissioners’ assessments

arguing the commissioners failed to substantially comply with their statutory

duties under chapter 468. Chapter 468 provides a conclusive presumption that,

On the trial of an appeal from the action of the Board in fixing and
assessing the amount of benefits to any land within the district as
established, it shall not be competent to show that any lands
assessed for benefits within said district as established are not
benefited in some degree by the construction of the said
improvement.

See Iowa Code § 468.92. In assessing the proper apportionment of the costs,

[i]f . . . it were permissible for every individual owner to come into
court and show that his particular tract received no benefit from the
improvement and be thereby relieved from liability to pay part of the
tax, the law would be robbed of all practical effectiveness, and the
whole system of drainage as a public enterprise be paralyzed.

Chicago & N.W. Ry. Co. v. Bd. of Supervisors of Hamilton Cnty., 162 N.W. 868,

873 (Iowa 1917). Thus, the Naeves have the burden of proving the assessment

was excessive. See Schwarz Farm Corp. v. Bd of Supervisors of Hamilton Cnty.,

8
The Naeves assert Philip Naeve tiled his land at expense to himself and as a result the
district received benefits for which he was not compensated. A taking occurs where the
state “substantially deprives one of the use and enjoyment of his property or a portion
thereof.” Kingsway Cathedral v. Iowa Dep’t of Transp., 711 N.W.2d 6, 9 (Iowa 2006).
The Naeves incorrectly view the assessments as a taking of their private tile, however,
the tile they installed remains in their land and is their private property. Thus, the
circumstances here do not constitute an eminent domain taking.
19

196 N.W.2d 571, 576 (Iowa 1972). “An assessment based on the

commissioners’ report and confirmed by the district court carries with it a strong

presumption of correctness and must stand unless the objecting landowner

shows it resulted from fraud, prejudice, gross error, or evident mistake.” Id.;

Martin v. Bd. of Supervisors of Polk Cnty., 100 N.W.2d 652, 655 (Iowa 1960);

Rogers v. Bd. of Supervisors of Cerro Gordo Cnty., 189 N.W. 950, 951 (Iowa

1922). Thus, the Naeves must show fraud, prejudice, gross error, or evident

mistake, rather than a standard of compliance, to overturn the commissioners’

assessment.

Chapter 468 sets out guidance for the classification commissioners’

duties. They are required

to perform the duties of classification of the lands, to fix the
percentages of benefits, apportion and assess the costs and
expenses of constructing the improvement, divide and rename
original improvements, and, if included in the Board’s resolution,
adopt special common outlet classifications to be maintained
independent of the district’s regular assessment schedules,
according to law and their best judgment, skill, and ability.

Iowa Code § 468.38. The commissioners

inspect and classify all the lands within said district . . . in tracts of
forty acres or less according to the legal or recognized
subdivisions, in a graduated scale of benefits to be numbered
according to the benefit to be received by each of such tracts from
such improvement, and . . . when completed, shall make a full,
accurate, and detailed report thereof and file the same with the
auditor. The lands receiving the greatest benefit shall be marked
on a scale of one hundred and those benefited in a less degree
with such percentage of one hundred as the benefits received bear
in proportion thereto. They shall also make an equitable
apportionment of the costs, expenses, fees, and damages
computed on the basis of the percentages fixed.

Iowa Code § 468.39. Iowa Code section 468.40 further provides:
20

In estimating the benefits as to the lands not traversed by said
improvement, [the commissioners] shall not consider what benefits
such land shall receive after some other improvements shall have
been constructed, but only the benefits which will be received by
reason of the construction of the improvement in question as it
affords an outlet to the drainage of such lands, or brings an outlet
nearer to said lands or relieves the same from overflow and
relieves and protects the same from damage by erosion.

Drainage District Number 126 consists of a main drainage ditch extended

east-west over two farms, including the Naeves’, fed by several laterals

extending into two other landowners’ farms. The individual landowners may tile

their lands to drain into the main or the laterals. The main directs water flow to

an outlet located at the easternmost boundary of the Naeves’ farmland. Thus,

the drainage facility traverses multiple owners’ land and benefits even non-

traversed land by providing a convenient drainage path. Classification and

assessment is a process by which the commissioners determine how much

benefit each landowner receives from the drainage facilities and consequently

how much of the installation cost each should be pay.

According to the engineer, the commissioners applied the “relative benefit”

method of assessment as prescribed by section 468.38. They began by dividing

the lands served by the drainage facilities into parcels of forty acres or less.

They then classified each parcel of land based on three factors: a “use factor,” a

“proximity factor,” and a “length factor.” The use factor is related to the land’s

need for drainage. Under Iowa Code section 468.40, the parcels with the

greatest need for drainage receive the highest score of one hundred. The

proximity factor is determined by how far an owner’s land is from the

improvement. Land that is farther away is assessed a lower proportion of the
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cost because the landowner must pay more to install tile to connect to the

drainage facilities. The length factor relates to how much of the drainage

facilities each parcel uses. Parcels that are farther upstream are assessed a

higher proportion of the cost because they use a greater length of the system.

The classifications and assessments depend on the availability of the drainage

facility to the land, not the landowner’s actual use of it. The commissioners also

considered the type of soil and the type of land. The commissioners classified

each parcel in relation to the parcels receiving the most benefit and adjusted by

percentages: a parcel receiving only one-quarter of the benefit of the most

benefited parcel was adjusted to a twenty-five percent benefit. Once the

commissioners classified how much benefit each parcel received, they

determined an abstract benefit value by which to determine how much each

individual landowner should contribute to the costs of installing the drainage

ditch.

The commissioners took the number of acres in each parcel, multiplied by

the benefit value for that parcel, to reach a value representing the total benefit to

the parcel. They then determined how much benefit each parcel received as a

percentage of the total benefit of the entire district. They then divided the total

cost of the drainage district installation proportionally to the benefit received by

each parcel. Each landowner owned several parcels. Adding these together, the

commissioners determined what proportion of the total costs should be assessed

to each landowner.
22

The Naeves contend the commissioners made a number of errors in their

classifications and assessments. Their argument is that each of these asserted

errors amounts to a lack of substantial compliance with the statutory

requirements of the commissioner’s report. However, nothing in the Naeves’

argument, nor in the record shows that the assessment is the result of fraud,

prejudice, or mistake. See Schwarz Farm Corp., 196 N.W.2d at 576. The

Naeves argue the assessment contains “glaring errors and omissions” which are

“prejudicial to the landowner’s rights.” Nonetheless, the Naeves were required to

show the engineer was influenced by motives of fraud or prejudice, or that the

engineer committed a gross error or mistake.

First, the Naeves assert the commissioners failed to treat land not

traversed by the drainage facility differently from lands traversed, as required

under Iowa Code section 468.40. Second, they argue the commissioners

ignored the statutory concept of proximity and preexisting improvement. The

drainage facility does not traverse the Naeves’ land in Section 14. Section 14 is

south of Section 11—Section 11 is traversed—and separated by a gravel road.

The tile the Naeves installed in Section 14 drains across Section 11 and into the

district’s main. The Naeves argue that, since the land in Section 14 is not

traversed by the drainage facility, it should have been classified as receiving a

minimal amount of benefit. The engineer, however, testified that the

commissioners adjusted the factors appropriately for Section 14. They classified

all agricultural land as receiving only thirty-three percent of the benefit received

by parcels receiving the most. With respect to Section 14, they assigned a
23

proximity factor of fifteen percent of the benefit because it is located farther away

from the drainage facility.

The Naeves also contend they should have been given benefit reductions

based on the length of the drainage facility their Section 11 and Section 14 land

use. They argue their Section 11 tile connects to the main only about 150 feet

from the outlet on the eastern boundary of their property. They also argue their

Section 14 tile connects to the main only fifty feet from the outlet. Thus, because

their drainage system uses a shorter length of the drainage facility they should

have been assessed a minimal amount. However, the commissioners also

reduced the length factor for Sections 11 and 14 to sixty percent benefit. Only

one other parcel, also belonging to the Naeves, received reductions based on

proximity or length.9 Thus, the commissioners considered whether the drainage

facility traversed the Naeves’ parcels, their proximity to the facility, and their use

of the facility and made reductions to their benefits accordingly. We perceive no

gross error in the commissioners’ classifications on this basis.

The Naeves’ final contention is the Board failed to consider benefits

received by non-agricultural land in the drainage district differently from benefits

received by agricultural lands and state the benefits as required by statute. As

stated above, the engineer testified the commissioners reduced the benefit to all

agricultural land to only thirty-three percent of the benefit received by non-

agricultural lands. The commissioners assigned the school a use factor of 1.75,

or 175, the greatest amount of benefit. Although this classification deviates from

9
Another small parcel of the Naeve property received a twenty-five percent benefit for
proximity and sixty percent benefit for length.
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the code, which specifies a 100-point scale where the parcel receiving the

greatest benefits receives 100 points, the scale the commissioners used still

indicates the school received the greatest possible benefit and all agricultural

lands received less than one third of the benefit of the school. The engineer

testified the commissioners gave these classifications because a school with a

large roof area and parking lots creates more run-off than agricultural land. The

commissioners therefore reduced the benefit to agricultural land significantly in

comparison to the non-agricultural land. The engineer also testified the

commissioners listed the specific benefits to the non-agricultural land as separate

line items in their classification report and explained the specific benefits to the

Board in their meetings. Again, we perceive no gross error in the commissioners’

classifications and assessments.

The Naeves were required to show the engineer was influenced by

motives of fraud or prejudice, or that the engineer committed a gross error or

mistake. There is no evidence of fraud, prejudice, or mistake. The engineer’s

testimony was that the commissioners applied the statutorily mandated

procedure for classification, and we find there was no gross error in the

procedures they used. The presumption that the commissioners were correct is

strong and the Naeves have not overcome it. Thus, we reject their argument that

the commissioners failed to use the appropriate mechanisms for classification.

IV. Conclusion.

Upon our de novo review, we conclude the Naeves waived their

arguments regarding procedural deficiencies in the creation of Drainage District
25

Number 126 by failing to timely file objections to notice or any other claimed

procedural defect and by failing to timely file a remonstrance. We also conclude

there was no evidence of fraud, prejudice, gross error, or evident mistake in the

commissioners’ classifications and assessments associated with the drainage

district. Accordingly, we affirm.

AFFIRMED.