
    G. H. Lade et al., Appellees, v. Board of Supervisors of Hancock County et al., Appellants.
    X DRAINS: “Deepening and Widening” Under, Guise of “Gleaning and Repairing.” An assessment made under a proceeding "to clean ané repair’’ a public drain, -without notice to the property-owner, is wholly illegal, when the work actually done constitutes, in general substance, a “widening -and deepening” of the ditch, even though, in the process of “widening and deepening,” cleaning and repairing was done. (See Secs. 1989-all, 1989-a21, Code Supp., 1913.)
    
      2 DKAINS: Illegality — Estoppel. Landowners are not estopped to object to an illegal assessment by the naked fact that they knew ■that work was being done on the drain. So held where the work done was under proceeding to clean and repair, but in truth constituted a widening and deepening.
    
    3 PAYMENT: Voluntary Payments — Drainage Assessments. The payment of a drainage assessment to the county treasurer, under the distinct understanding that such payment was to be held subject to the outcome of pending litigation relative to the legality of such assessment, is not such a voluntary payment as will estop the one paying from demanding the return of the money after the assessment has been declared illegal; and especially so when such payment remains unexpended in the hands of the treasurer.
    
      Appeal from Hancoch District Court. — C. H. Kelley, Judge.
    March 7, 1918.
    Rehearing Denied June 24, 1918.
    Suit in equity, to cancel an assessment with which it is sought to charge the appellees upon the claim that a drainage ditch has been cleaned and repaired. The claim is that what was done was not cleaning and repairing, but an unauthorized widening and deepening of such drainage ditch. The trial court cancelled the assessment.
    
    Affirmed.
    
      Wiclvman & Eastings and Ramsay & Blachstone, for appellants.
    
      Senne'ff, Bliss é Witioer, for appellees.
   Salinger, J.

I. This record has 121 pages of abstract, a 75-page amendment on part of appellee, and a second amendment on his part. The original arguments have 70 pages, and there is a supplemental argument by appellee and an objection to its being considered, which j ° ' -includes a reply thereto. A most laborious investigation of all these has satisfied us reaj controversy is very narrow, and it is to be regretted this could not be known until the exháustive investigation of this record was finished.

The defendant board of supervisors axithorized the cleaning and repairing of an existing drainage ditch, and made contract to have this done. The contractor performed work under this authorization and contract. An assessment has been levied, charging the lands of the plaintiffs. They instituted suit to have this assessment cancelled, on the ground that, no matter what Avas authorized by the board and contracted for, the work actually done was not cleaning and repairing, but Avidening and deepening said drainage ditch. The relief asked by them Avas granted by the trial, court.

While it is time the board of supervisors has authority to have an existing ditch widened and deepened and to make assessment for the costs thereof, this mayr be done only if notice be given; and none was given. See Code Supplement, 1907, Section 1989-all, as amended by Section 10, Chapter 118, Acts of the Thirty-third General Assembly, and Section 4, Chapter 87, Acts of the Thirty-fourth General Assembly, which Avas the laAV at the time involved in this controversy. So it does not matter that the work actually done might have been authorized, or that it Avas of benefit to these plaintiffs; and the sole question at this point is whether that for which it is sought to charge these plaintiffs was, in fact, no more than repairing and cleaning. If it Avas not repairing and cleaning, but widening and deepening, the cancellation of the assessment in revieAv was justified. The trial judge declares:

“It is clear to me that all parties concerned in the work in question Avere acting under a misapprehension of the facts. What Avas actually done Avas far in excess of removing a fill, and far in excess of repairing. It Avas enlarging, deepening and widening and lengthening.”

His conclusion upon this is that the assessing complained of is not authorized by law. While, on this, a review de novo, this statement or finding on part of the trial court does not conclude us, it does have some weight. Giving it that, we find from the record that this pronouncement by the trial judge is fully sustained by the evidence. Because of the conclusion reached by us, much said on both sides needs no consideration. The chancellor could not reform the assessment. It was an entirety, based upon the assumption that the work done was cleaning and repairing. This being so, the assessment as a whole must fall, even if it were practicable and permitted to determine whether or not some cleaning and repairing was included in the work done. That is to say, an assessment having been made wholly on the ground that cleaning and repairing was to be paid by it, such assessment must be cancelled if, in general substance, the work done was not cleaning and repairing, and was of a character for which notice not given was by law required.

II. The naked fact that the landowners who now complain were advised' that work was being done in the old ditch, does not create an estoppel against them. There is no evidence that they knew that what was being done was not a cleaning and repairing of the ditch, but was, instead, a substantial loAvering of its level, or a substantial widening. The board of supervisors itself did not apprehend that the latter was to be done, nor know it Avas being done. The board certainly Avas as much under obligation to prevent unauthorized work as the landOAvner was to assume that such duty had not been performed. If it was the duty of the county authorities to see to it that the ditch should not be deepened and widened, it was not for these landowners to assume that the board would permit unauthorized work, and that the landowner must take steps to prevent it. The plaintiffs knew that widening and deepening could.not lawfully be engaged in at their cost unless they had been served with notice, and knew they had not been so served. Instead of assuming and anticipating and determining that the doing of the work which they saw was. being done because the board of supervisors contemplated the levy of an illegal assessment against them, it was their right to assume that the work being done was such as the law permitted. We think the question is fairly ruled in principle by Wingert v. City of Tipton, 134 Iowa 97.

III. Some of the landowners, after this suit began, deposited their part of this assessment with the county treasurer, with the express understanding that same was to be held subject to the litigation and its termination and determination. The money has not been disbursed, and no one has been put to a change of position by reason of the deposit. We think such payment was not a voluntary payment, even on part of those of the plaintiffs who made it, in such sense as now to estop them. Of course, this is so as to those plaintiffs who made no such payment. In principle, this position is sustained by Winzer v. City of Burlington, 68 Iowa 279.

The decree below must be — Affirmed.

Preston, C. J., Evans and Gaynor, JJ., concur.  