Surface Water Drainage Dispute Raises Numerous Issues

Surface Water Drainage Dispute Raises Numerous Issues 2321 N. Loop Drive, Ste 200 Ames, Iowa 50010 www.calt.iastate.edu July 17, 2009 - by Roger McEowen Overview Surface water drainage disputes can arise between property owners when an adjacent landowner does something to interfere with the natural or historical flow of water to or from their property. 1 Historically, the law did not permit much alteration of a natural water course. 2 But, a landowner of higher elevation (the owner of the dominant estate ) is entitled to drain excess surface water onto land of lower elevation (the servient estate ) along and within the natural watercourse. 3 However, a drawback of this approach was that it did not allow landowners to fully develop and utilize their land s potential. Consequently, in 1908, the Iowa Constitution was amended to create a system of drainage districts, whereby a county board would oversee drainage issues within any particular district. 4 A county board of supervisors can establish a drainage district, 5 as can two or more landowners by filing a petition with the county auditor s office. 6 Once a drainage district is properly established, a tax assessment for that drainage district will be made against each benefitted tract of land. 7 The collected taxes are kept in a separate fund known as the county drainage fund and administered by the county auditor. 8 A drainage district is not required to follow the natural watercourse and can divert water in or out of a natural watercourse if it is more efficient in the management of the drainage of water. 9 For land not contained within a drainage district, landowners are subject to Iowa law with respect to the drainage of surface water both statutory and case law. A recent opinion of the Iowa Court of Appeals dealt with a surface water drainage dispute between neighbors and involved numerous issues - statutory and common law surface water drainage rules; whether the land at issue was in a drainage district and, if so, whether the drainage district had terminated; nuisance; negligence; trespass; and whether the Iowa statute requiring mediation of disputes involving farmers with respect to certain types of contracts and nuisances applied. Unfortunately, because of the way the case was handled at the trial court level and the reasoning of the appellate court on certain issues, the opinion raises more questions than it resolves. Facts of Gannon, et al. v. Rumbaugh 10 Two neighboring landowners and a farm tenant of one landowner, sued an adjacent landowner (the defendant) for nuisance, negligence, trespass, and failure to abide by Iowa drainage district rules when the defendant modified a levy and constructed a dam on his property. One plaintiff owned 1

farmland to the south of the defendant s tract that was lower than the defendant s land. Thus, the defendant s land was the dominant estate with respect to this tract. The other plaintiff owned farmland across the road, to the south of the defendant s land. However, this land was higher than the defendant s land as was, therefore, the dominant estate. All of the land at issue was located between two creeks. In the early 1900 s, a drainage district was established and a system of levees was built to prevent flooding of the farmland in the area. The parcels identified in this dispute were a part of the drainage district. However, the defendant claimed that the drainage district was dissolved sometime thereafter, because the district ran out of money. Whether the land was within a drainage district was a key issue in the case. If the land was within a drainage district, the district may cause surface water to cross watersheds and flows to be altered without fear of damage claims. If the land was not within a drainage district then statutory and common law drainage rules would apply and the dominant/servient estate analysis would come into play. In 2002, the defendant lowered the levee on his property (which, apparently, was in existence as a result of action taken by the drainage district) and constructed a dam by filling a road ditch. The defendant claimed his actions were necessary because the levees were in a state of poor repair and that altering and/or removing them was necessary to eliminate the possibility of liability for damages caused by a catastrophic failure. Note: If the property were part of a drainage district, the district would have an obligation to keep its facilities in a state of good repair. The defendant, in that situation, could have easily forced the repairs to have occurred. But, the defendant s deliberate destruction of the levees, without the permission of the district trustees, was a clear violation of state law. The court s opinion does not address this issue insomuch as the court neglected to determine if the district had been properly dissolved. If it had not been properly dissolved, then the plaintiffs could petition for the reestablishment and/or repair of the levee. Again, the court did not address the issue. In 2004 and 2005, after heavy rainfall in the area, portions of the plaintiffs fields were flooded, forcing the plaintiffs to replant those areas. The plaintiffs subsequently sued the defendant on the theories of nuisance, negligence and trespass and sought money damages and injunctive relief (which would require the defendant to restore the levies and road ditch to their pre-improved state. At trial, the plaintiffs prevailed. The trial court found that the defendants had created a nuisance, were negligent, and had removed drainage improvements that were required by law under the drainage district. The trial court also granted injunctive relief. In its order to the parties, the trial court adopted the findings of fact and legal conclusions of the plaintiffs verbatim, rather than articulating their own findings, and ordered the defendant to pay all of the plaintiffs for their damages. The injunctive relief ordered the defendant to restore the levee and road ditch, and barred the defendant from removing any portion of the levee. On appeal, the appellate court noted that it need not give deference to the trial court s 2

findings the typical approach. That s because, as stated above, the trial court had simply adopted the plaintiffs proposed findings. So, that meant the appellate court was entitled to closely scrutinize the record to make sure that evidence the parties presented supported the trial court s conclusions. With that review standard in mind, the court proceeded to evaluate the plaintiffs various claims nuisance, negligence, trespass and request for injunctive relief. Application of Iowa Drainage District Law A key part of the case was whether Iowa drainage district law applied, or whether the general rules applicable to surface water drainage in areas not contained in a drainage district was to be utilized. While the court noted that the levees were likely built as part of drainage district procedures, and that the defendant had not provided any evidence that the levees were still not authorized by law, the appellate court claimed that drainage districts are established only for specific limited purposes and have a limited existence, and noted that the plaintiffs had failed to produce evidence that the levee at issue was a specific limited purpose of a drainage district. Note: The court s comment as to the supposedly limited purpose and existence of drainage districts is contrary to law and reality. There is a specific statutory procedure that must be followed to terminate a drainage district. They simply do not expire via the passage of time. In addition, most of Iowa s drainage districts have existed for many decades (at least 80 years) and very few have actually been formally dissolved. Indeed, the purpose of a drainage district never ends so long as rain continues to fall and the land is cropped or otherwise improved. Likewise, some drainage districts have a permanent existence which belies the court s claim that drainage districts have a limited nature and existence. For example, in Mahaska County, the South Skunk River was channelized via Drainage District No. 2, with the District constructed in cooperation with the U.S. Army Corps of Engineers. In addition, the U.S. Army Corps of Engineers worked with local drainage districts to construct the large pumping plants needed to support an elevated Missouri and Mississippi River with confining levees. These districts certainly have a permanent existence. The appellate court also noted that the defendants had produced a letter from a lawyer that represented drainage districts in the county which was entered into evidence at trial and stated that the lawyer had looked it up and discovered that the drainage district governing the subject property had been dissolved. Apparently, the letter made no mention of how the dissolution had occurred, 11 and the attorney did not provide a copy of the minutes describing the procedures used to supposedly dissolve the district and the date that such dissolution occurred. Note: The point is that had state law been followed to properly dissolve the drainage district, a public record of such action would exist. The appellate court made no comment as to the fact that, at the trial court level, no inquiry was 3

apparently made as to the existence of a public record and, as such, did not remand for further fact finding on this point. The appellate court simply accepted the letter as fact, and stated that the plaintiffs had not proffered any evidence that the ditch in question was part of a drainage district. The court did not address Iowa law concerning the procedure that is required to properly dissolve a drainage district. However, Iowa law sets forth specific procedures for dissolving a drainage district and the abandonment of all facilities. 12 Those rules require, among other things, that the drainage district must be solvent, all obligations of the district must be paid, and the board must find that there is no longer any need to maintain the facilities of the drainage district. In addition, a district may be abandoned if the maintenance costs exceed the benefit derived. 13 But, as stated above, the appellate court neither addressed those procedures nor remanded for the trial court s consideration of them either. The appellate court, in an attempt to bolster its conclusion that the drainage district no longer existed, pointed to the defendant s 30-year abstract which did not show an existing drainage district. But, that point is almost completely meritless. Rarely are drainage district easements recorded they are a creature of Iowa statutory law. About the only notation that would ever show up on an abstract would be an outstanding drainage district levy. But, it is not uncommon for a drainage district to go for many decades without making a single levy. Indeed, drainage districts in Iowa exist that are almost 100 years old for which there is absolutely no record of a maintenance levy ever being made typically in small districts with a limited amount of tile drains. 14 Given the passage of time, it is quite possible that the new owners would not even know that they land they owned was in a drainage district. Note: The appellate court also failed to point out that the trial court made no inquiry as to whether the county auditor s record included an assessed acres reduction for drainage district rights-of-way (as is commonly done for roads). This would have been sound proof that the district existed and had the district been dissolved, the easement would have been abandoned. 15 Again, this appears to an issue that should have been remanded for the trial court to resolve. The end result was that the court determined that the drainage district was not in existence and that the surface water drainage at issue was to be determined under the general rules (statutory and common law). Consequently, there was no basis to enhance damages under the Iowa drainage district statutory provisions. 16 The Nuisance Claim Mediation Required? On the plaintiffs nuisance claim, the appellate court found that in order to establish that the defendants were causing a nuisance to the plaintiffs (interfering with the use and enjoyment of their property) they must first attempt to resolve the dispute via mediation. 17 The Iowa mediation statute, entitled Farm Mediation Care and Feeding Contracts Nuisances requires that a person who is a farm resident, or other party, desiring to initiate a civil proceeding to resolve a dispute, shall file a request for mediation with a farm mediation service. A release from mediation may only 4

be granted to either party if the time delay for mediation would cause irreparable harm to the proceedings. The court concluded that since the plaintiffs did not seek to mediate or obtain a release from mediation, the trial court did not have the jurisdiction to find the defendants had caused a nuisance. The appellate court s assertion that the mediation statute applied in this case is questionable. While the mediation statute requires mediation for disputes where at least one party is a farmer, and is triggered if a nuisance is alleged, the statutory definition of nuisance would appear not to have been intended to apply to common surface water drainage disputes. The covered types of nuisances are those that are injurious to health, indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property 18 including (but not limited to) certain types of businesses that emit noxious exhalations or unreasonably offensive smells (among other things), 19 the collection of offal, filth, or noisome substance, 20 the obstruction or impeding of any navigable river, harbor, or collection of water, 21 the pollution of water or the unlawful diversion of water from a river, stream or pond (note the statute does not say surface water, but is specific with respect to water of a river, stream or pond) to the detriment of another party 22 the obstruction of roads and streets, etc., 23 and certain billboards and signs. 24 The court did not explain how a nuisance claim concerning non-navigable surface water drainage fit within any of the enumerated statutory provisions. While the mediation statute sets forth the types of nuisances covered (as mentioned above), it also says that the provision includes those nuisances but is not limited to those nuisances. However, a fundamental principle of statutory construction is to construe the more general descriptor ( not limited to ) consistent with the specific descriptors. Clearly, the legislature was concerned with odors, obstruction of roadways, water pollution and the obstruction of navigable waters which are all either injurious to health or interfere with commerce such that there is a substantial interference with the comfortable enjoyment of life or property. It is not nearly as clear (as the appellate court seems to make it out to be) that the legislature intended nuisance claims involving non-navigable surface water drainage having no impact on commerce or water quality and where health risks are not involved to be subject to mediation. Negligence As to the claim that the defendants were negligent in constructing the dam in the road ditch and removing the levee, the appellate court disagreed with the trial court as to its finding concerning the plaintiff that owned the servient estate and agreed with the trial court as to the plaintiff that owned the dominant estate. The court reiterated that the owner of the dominant estate was entitled to the flow of water in its natural course onto the servient estate. To the appellate court s credit, that is a correct statement of Iowa law. But, that same rule worked against the other plaintiff who owned the servient estate. In that situation, the ditch obstructed the natural flow of the water. In addition, due to the removal of the levee, there was an increase in surface water reaching the plaintiff s servient estate. The defendant argued that the increased flow was still in the natural course of the water way, so it was allowable. The appellate court agreed even though the 5

defendant presented little to no evidence that the increased water flow was in the natural route. Conclusion The court s opinion leaves much to be desired. The court s analysis concerning Iowa drainage district law is questionable, at best, as is the court s holding that nuisance claims arising from surface water drainage disputes are subject to mandatory mediation requirements. Even though the case may have been presented and argued in not the most artful manner at the trial level, opportunities existed for the appellate court to repair the damage. However, the possibility exists that the plaintiffs could ultimately prevail in this matter irrespective of the court s opinion. The plaintiffs could check the records at the courthouse. If those records reveal that a district was established, that the levees were built by the district, that their farmland was assessed for the construction of the levees and that the district was never properly terminated, the plaintiffs could petition the board of supervisors to restore the levees. The board would be obligated to order the restoration, and the district would then restore the levees and assess the defendant twice the cost of what he had destroyed. 9 James W. Hudson, Attorney At Law, Observations of a Drainage Attorney, as published in the Iowa Drainage Law Manual, p. 3. 10 772 N.W.2d 258 (Iowa Ct. App. 2009). 11 Assuming the county had little drainage district activity, the attorney may not have been aware of the statutory procedures for properly dissolving a drainage district. 12 See Iowa Code 468.250-255. 13 Iowa Code 468.250. In the present case, the opinion does not provide enough information to conclude that there was a lack of sufficient benefit to offset the maintenance costs. Indeed, the opinion does not even address the issue. But, it is not likely to have been the case given the facts maintenance of a system of small earthen dikes. 14 Either the tile drains never had a problem or the local farmers simply made the repairs themselves rather than bother to involve the district. 15 But, sometimes the right-of-way is missed by the county with the result that the lack of a right-of-way offset for assessed acres is no proof that the district does not exist. 16 Iowa Code 468.148 requires that any person who willfully breaks down or otherwise injures a levee or obstructs a ditch authorized by law (in a drainage district) is liable for double damages to the affected party. 17 Iowa Code 654B 18 Iowa Code 654B.1(7). 19 Iowa Code 657.2(1). 20 Iowa Code 657.2(2). 21 Iowa Code 657.2(3). 22 Iowa Code 657.2(4). 23 Iowa Code 657.2(5). 24 Iowa Code 657.2(7). 1 See, e.g., Sheker v. Machovec, 116 N.W. 1042 (1908). 2 See, e.g., Kaufman v. Lenker, 146 N.W. 823 (Iowa 1914). 3 See, e.g., Moody v. Van Wechel, 402 N.W.2d 752 (Iowa 1987). 4 Amendment of 1908 adding Section 18 of Article I of the Iowa Constitution. 5 Iowa Code 468.1. 6 Iowa Code 468.6. 7 Iowa Code 468.50. 8 Iowa Code 468.54 6