Eichhorn v. Waldo Tp. Bd. of Sup'Rs, 20050295.

• Decision Date: 17 October 2006
• Docket Number: No. 20050295.,20050295.
• Parties: Ervin EICHHORN, Petitioner and Appellant v. The WALDO TOWNSHIP BOARD OF SUPERVISORS, COUNTY OF RICHLAND, State of North Dakota, and Harry Emde, Robert M. "Shotz" Kinn, and Gerald Wirtz, constituting the members of said board and the duly designated Waldo Township Overseers of Highways, Respondents and Appellees and The Richland County Water Resource District, a body politic and corporate, Intervenor and Appellee.
• Court: North Dakota Supreme Court

Page 112

723 N.W.2d 112

2006 ND 214

Ervin EICHHORN, Petitioner and Appellant v. The WALDO TOWNSHIP BOARD OF SUPERVISORS, COUNTY OF RICHLAND, State of North Dakota, and Harry Emde, Robert M. "Shotz" Kinn, and Gerald Wirtz, constituting the members of said board and the duly designated Waldo Township Overseers of Highways, Respondents and Appellees and The Richland County Water Resource District, a body politic and corporate, Intervenor and Appellee.

No. 20050295.

Supreme Court of North Dakota.

October 17, 2006.

Rehearing Denied November 7, 2006.

Jonathan T. Garaas, Garaas Law Firm, Fargo, ND, for petitioner and appellant.

Corey J. Quinton, Oppegard, Wolf & Quinton, Moorhead, MN, for respondents and appellees.

Duane R. Breitling, Ohnstand Twichell, P.C., Fargo, ND, for intervenor and appellee.

SANDSTROM, Justice.

[¶ 1] Ervin Eichhorn appealed from a district court order permitting the Richland County Water Resource District ("District") to intervene in his action against Waldo Township ("Township") and from a judgment dismissing his petition for a writ of mandamus to compel the Township to install a larger culvert under a township road. We hold the district court did not err in permitting the District to intervene and did not abuse its discretion in denying Eichhorn's request for a writ of mandamus. We affirm.

I

[¶ 2] Eichhorn owns Richland County land described as the northeast quarter of section 13, township 130 north, range 49 west, in Waldo Township. The northeast corner of Eichhorn's land is bordered by two Township roads, an east-west road along the northern edge and a north-south road along the eastern edge of his property.

[¶ 3] Richland County Drain No. 65 ("Drain 65") runs north and south along the western edge of section 13 and is located one mile west of the northeast corner of section 13. A lateral drain, which flows into the main channel of Drain 65 at a 90-degree angle, runs along the northern edge of section 13 for a distance of one mile. Drain 65 and its lateral drain were established under a July 14, 1960, "Amended Order Establishing Drain" issued by the Richland County Water Conservation and Flood Control Commission. Drain 65 and the lateral drain were designed to change the water flow in the northern part of section 13 to flow from east to west. The lateral drain enters the main channel of Drain 65 through two 36-inch culverts with "flap-gates." Additionally, a right-of-way deed dated September 27, 1960, was executed by Ervin Eichhorn's parents and predecessors in interest, Floyd and Clara Eichhorn, granting Richland County a right-of-way "for the laying out, construction, and maintenance of a public drain" in the northeast quarter of section 13, described in part as:

BEGINNING AT A POINT 33 FEET WEST AND 33 FEET SOUTH OF THE NORTHEAST CORNER OF SECTION 13-130-49; THENCE SOUTH A DISTANCE OF 33 FEET; THENCE WEST A DISTANCE OF 2607 FEET; THENCE NORTH A DISTANCE OF 33 FEET; THENCE EAST A DISTANCE OF 2607 FEET TO THE POINT OF BEGINNING AND CONTAINING 2.0 ACRES, MORE OR LESS.

[¶ 4] A 30-inch culvert also presently exists under the east-west Township road in the northeast corner of Ervin Eichhorn's land in section 13. The record reflects this culvert initially was not part of the lateral drain but was installed by Waldo Township at the request of the Richland County Water Management District after November 1965. According to the November 9, 1965, minutes of a meeting of the Board of Commissioners of the Richland County Water Management District, the Board passed a motion indicating that in order to provide "some temporary relief" from a drainage problem to Floyd Eichhorn, a culvert should be installed in the northeast corner of section 13 and one approach should be removed along the north side of the northwest quarter of section 13 on the lateral to Drain 65. The minutes also state the Board would pay for the removal of the approach and Waldo Township would install the culvert.

[¶ 5] Ervin Eichhorn claimed a history of flooding on his property. In May 1998, he filed a complaint with the District, asserting there was an "unauthorized construction of a dike, dam or other device for purposes of water conservation, flood control, regulation, watershed improvement for storage of water." Eichhorn claimed "those dikes, or roads acting as dikes because of inadequate culverts, have not received the necessary permit and, therefore, pursuant to the statute must be removed." In a subsequent letter clarifying his complaint, Eichhorn explained "[t]he dikes between Section 1 and 6, the dike in Section 31, and the road without adequate culverts between Section 13 and 18 act as dikes forcing more than 12 ½ acre feet of water through an unnatural course which is prohibited absent a permit." The District denied Eichhorn's request for removal of the "dikes." Eichhorn appealed the District's decision to the district court, but in 1999, he stipulated to a dismissal with prejudice of his appeal.

[¶ 6] In 2001, because of continuing concerns about flooding on his property, Eichhorn requested the State Engineer to determine the appropriate stream crossing standards under N.D.C.C. § 24-03-08 for the northeast corner of section 13. In a November 5, 2001, letter, State Engineer Dale Frink responded that based upon the appropriate stream crossing standards, "the minimum design event for culverts through the township road located on the north edge of Section 13 is a 10-year event. . . . The flow for the 10-year event at the northeast corner of Section 13 was determined to be 51 cfs [cubic feet per second]." Eichhorn also obtained calculations from the State Engineer's representative, Randy Gjestvang, which indicated a possible solution to meet the discharge requirement of 51 cfs was the installation of a 42-inch culvert in place of the existing 30-inch culvert.

[¶ 7] In April 2002, Eichhorn, through his counsel, sent a letter to the Township and the District, notifying them of the State Engineer's determination under N.D.C.C. § 24-03-08 and requesting the Township take action to make the culvert in the northeast corner meet these standards. When no action was taken, Eichhorn sent another letter to the Township and the District to remind each governmental entity of their statutory obligations and his need for relief. Neither the Township nor the District responded.

[¶ 8] The District, however, did seek assistance from the State Engineer by requesting comments regarding whether, based on the State Engineer's November 5, 2001, letter, specific proposed improvements to Drain 65 would meet the design criteria for the stream crossing, particularly because the northern edge of section 13 also included the lateral drain. In an October 10, 2002, letter, the State Engineer stated:

The statute [N.D.C.C. § 24-03-08] does not direct the State Engineer to design or size the crossing. The design process is more appropriately the responsibility of the road or drain authority.

In this particular case, it would appear that improvements that allow the water to more efficiently enter Drain # 65 may be the best alternative for all parties. Some of the alternatives under consideration may require a permit.

[¶ 9] In late 2002, Eichhorn began this action against the Township for a writ of mandamus to compel the Township to install a larger culvert in the Township road under N.D.C.C. §§ 24-03-06 and 24-03-08. The District moved to intervene, contending the proposed culvert was part of the lateral drain to Drain 65, over which the District has authority and jurisdiction. The district court permitted the District to intervene. In October 2004, the District moved for summary judgment, arguing Eichhorn's action was barred by res judicata based upon his 1999 stipulated dismissal of his appeal of the District's prior denial of his request for removal of "dikes." The district court denied the District's motion as untimely.

[¶ 10] At a November 2004 hearing, Eichhorn presented testimony from Bruce Miller, who was Eichhorn's tenant on the property in 2003 and 2004. Miller had documented significant flooding that occurred on Eichhorn's property in June 2003 after approximately seven to nine inches of rain had fallen during the night. The District and Township presented testimony from the District's engineer for Drain 65 and from a representative from the state engineer's office who had conducted the investigation and drafted the letters for the state engineer. The district court denied Eichhorn's request for a writ of mandamus and a judgment was entered dismissing his action.

[¶ 11] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 32-34-01. Eichhorn's appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 12] Eichhorn argues the district court erred in allowing the District to intervene in this mandamus action under N.D.R.Civ.P. 24(a), which governs a party's intervention as a matter of right, and states:

Upon timely application anyone must be permitted to intervene in an action if: (i) a statute confers an unconditional right to intervene; or (ii) the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

[¶ 13] In considering whether a party may intervene in an action as a matter of right under N.D.R.Civ.P. 24(a), we review any findings of fact made by the district court under the clearly erroneous standard of review in N.D.R.Civ.P. 52(a). See State v. Family Life Servs., Inc., 1997 ND 37, ¶ 6, 560 N.W.2d 526. However, the ultimate question whether a party has a right to intervene is a question of law that is...