Board of Trustees of Farmers Drainage Dist. v. Iowa Natural Resources Council, 48856
| Decision Date | 16 October 1956 |
| Docket Number | No. 48856,48856 |
| Citation | 78 N.W.2d 798,247 Iowa 1244 |
| Parties | BOARD OF TRUSTEES OF THE FARMERS DRAINAGE DISTRICT, and C. W. Montgomery, C. E. Sumner, and Al Wendel, the individual members thereof; and Board of Trustees of the Garretson Drainage District, and Charles R. Kerr, Theodore Chilton and Henry Siebert, the individual members thereof; and Board of Supervisors of Woodbury County, Iowa, and A. Bert Erickson, Lester L. Kenney, Ivan C. Eckhart, Robert E. Carlson, and Charles W. Armstrong, the individual members thereof, Appellees, v. IOWA NATURAL RESOURCES COUNCIL, Appellant, Board of Trustees of the Nagel Drainage District of Monona County, Iowa, and Warren Heisler, Karl Nagel, and Hubert Nickolaison, Interveners-Appellees. |
| Court | Iowa Supreme Court |
Dayton Countryman, Atty. Gen., and Kent Emery, Asst. Atty. Gen., for appellant.
Kindig & Beebe, Sioux City, for appellee Board of Trustees of the Farmers Drainage District.
Maurice E. Rawlings, Sioux City, for appellee Board of Trustees of the Garretson Drainage District.
Robert B. Pike, Sioux City, for appellee Board of Supervisors of Woodbury County, Iowa.
Prichard & Prichard, Onawa, for interveners-appellees.
This is another of many controversies submitted to us involving affairs of Monona-Harrison drainage district in western Iowa. This action grew out of an order by defendant Iowa Natural Resources Council disapproving the district's application for approval of a plan known as the Gaynor plan for certain repairs and improvements of the Monona-Harrison drains.
Pursuant to section 455A.23, Code 1954, I.C.A., the board of trustees of the district appealed to the district court from the council's order (Cause No. 16057). This action in equity was also commenced against the council by trustees, respectively, of Farmers drainage district and Garretson drainage district and Woodbury county supervisors for a declaration as to defendant's power under Code chapter 455A, I.C.A. to disapprove such an application as that made by Monona-Harrison district (Cause No. 16125).
Farmers and Garretson districts are so-called upper districts, which, together with Woodbury county, have been held liable for part of the cost of maintaining the drains in Monona-Harrison district which afford an outlet for the upper districts. No question is raised as to the standing of these plaintiffs to maintain cause 16125.
The two causes were consolidated for trial as in equity. In No. 16057 the district court found defendant's order of disapproval was unjust, unreasonable and not supported by the evidence and ordered defendant to approve the application of Monona-Harrison district. See Code section 455A.23, I.C.A. In cause 16125 the court held the only power conferred upon defendant to approve or disapprove such an application by a drainage district is that conferred by the third paragraph of Code section 455A.19, I.C.A. based upon defendant's determination whether the proposed work 'will adversely affect the efficiency of or unduly restrict the capacity of the floodway'. The court also held in effect that section 455A.22 was not applicable to such a project as the Gaynor plan and conferred no authority upon defendant it might exercise in passing upon Monona-Harrison's application.
Defendant council appealed to us from the decree in each case. Four days before submission of the appeals the trustees of Monona-Harrison district moved to dismiss the appeal in 16057 as to them because of the council's failure to file copy of the printed record, and copies of defendant's brief and argument, for their attorneys as required by 58 I.C.A. Rules of Civil Procedure 342(a) and 343. No one objected to sustaining the motion and we sustained it. This leaves the declaratory judgment action, No. 16125, for our determination.
The Gaynor plan is fully explained in Johnson v. Monona-Harrison Drainage District, 246 Iowa 537, 68 N.W.2d 517. We there affirmed a decree dismissing an appeal by landowners from an order of the trustees authorizing the repairs and improvements contemplated by the Gaynor plan. We will here refer as briefly as possible to the plan and the circumstances which led to its adoption.
The Little Sioux river has its source in southern Minnesota, flows generally south and southwest through Woodbury and Monona counties and outlets in the Missouri river in Harrison county. The main Monona-Harrison drainage ditch in those two counties generally parallels the Little Sioux to the west thereof. At a point near the town of Turin in Monona county where the river and ditch are a little less than one-fourth mile apart an east and west ditch was built between the two, generally perpendicular to each. It is known as the equalizer. The theory behind its construction seems to have been that when water was high in the Little Sioux part of the water would be diverted through the equalizer into the Monona-Harrison ditch. Also that when water was high in that ditch part of it would be diverted through the equalizer into the river.
The equalizer ditch did not function just as planned. Instead, 90 per cent or more of the water that comes down the Little Sioux to the equalizer flows west through it into the Monona-Harrison main ditch but water from that ditch does not flow east through the equalizer into the river. South of the equalizer the bed of the Little Sioux has filled with silt and vegetation until the channel has largely disappeared. This has placed a heavier burden on the Monona-Harrison ditch than it can bear.
Mr. Gaynor, engineer for the district, evolved a plan for cleaning out the channel of the Little Sioux south of the equalizer, digging some straight cutoff ditches at places where the river bed makes some U turns and installing a spillway at the east end of the equalizer. Purpose of the spillway is to confine the water coming down the Little Sioux to the channel as cleaned and straightened except when the water is high enough to flow over the spillway into the equalizer. These are the main features of the Gaynor plan. In 1953 it was estimated the cost of carrying out the plan would be in the neighborhood of $500,000.
Trustees of Monona-Harrison district eventually approved the plan. April 14, 1953, the district made application to defendant council for its approval of the plan. After several council meetings at which interested persons appeared to support or oppose the plan, defendant finally disapproved it by order sent attorneys for the drainage district March 17, 1954. This order led to the appeal by the district and the declaratory judgment action by trustees of the two upper districts and Woodbury county supervisors. Trustees of a third upper drainage district, the Negel district, intervened in this latter action on the side of plaintiffs.
Defendant council was created by chapter 203, Acts 53d General Assembly, approved March 31, effective April 16, 1949, chapter 455A, Codes 1950, 1954, I.C.A. It consists of seven members appointed by the governor of the state with the approval of the senate, § 455A.4. It is required to meet four times a year and at such other times as it deems necessary, § 455A.8. The declaration of policy in the act, § 455A.2 states it is the council's 'duty and authority to establish and enforce an appropriate comprehensive state-wide plan for the control of water and the protection of the surface and underground water resources of the state.' See also section 455A.17.
The council is given the power of eminent domain, § 455A.15. It has jurisdiction over the public and private waters in the state and lands adjacent thereto necessary for carrying out the provisions of the chapter. It shall § 455A.18.
The third paragraph of section 455A.19 provides: 'In the event any person desires to erect, make, use or maintain, * * * a structure, dam, obstruction, deposit or excavation, * * * in or on any floodway, and it is uncertain as to whether it will adversely affect the efficiency of or unduly restrict the capacity of the floodway, such person may file a verified written application with the council, setting forth the material facts, and the council on hearing, shall enter an order, determining the fact and permitting or prohibiting the same.'
As previously indicated the trial court held the only power chapter 455A confers on defendant to approve or disapprove such a project as the Gaynor plan is that found in the language just quoted. Also that 'the fact' the council is to determine, where such an application is made to it, is whether the project 'will adversely affect the efficiency of or unduly restrict the capacity of the floodway.' Plaintiffs and intervenor have accepted this holding. Defendant of course challenges it. 'Person,' as used in chapter 455A, includes a drainage district, § 455A.1.
The only provision of chapter 455A other than section 455A.19 it may be claimed expressly confers power on defendant to disapprove such a project as the Gaynor plan is section 455A.22. The principal question before us seems to be whether 455A.22 confers such power. Stated differently, is 455A.22 applicable to the situation we have here? As indicated, the district court held 455A.22 does not apply here. Defendant not only disputes this view but contends in effect its power is even broader than that expressly conferred by 455A.22.
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