Harrison-Pottawattamie Drainage Dist. No. 1 v. State
| Decision Date | 05 March 1968 |
| Docket Number | No. 52706,HARRISON-POTTAWATTAMIE,52706 |
| Citation | 261 Iowa 1044,156 N.W.2d 835 |
| Parties | DRAINAGE DISTRICT NO. 1 by E. M. Osborn, O. G. Danker, and F. W. Myers, Trustees for said District, Appellees, v. The STATE of Iowa, the Iowa State Highway Commission, and Capitol Construction Company, Appellants. |
| Court | Iowa Supreme Court |
Richard C. Turner, Atty. Gen., L. Michael McGrane, Asst. Atty. Gen., and Leo Ballard, Des Moines, for appellants.
Acrea & Pearson, Missouri Valley, for appellees.
The State Highway Commission appeals from a decree enjoining it from proceeding with construction of a bridge on U.S. Highway 30 where it crosses Allen Creek drainage ditch, and ordering removal of piers from the creek.
Plaintiff drainage district consists of certain districts in Harrison and Pottawattamie Counties, including Allen Creek drainage ditch. The Allen ditch consists of several tributaries with sources near the north Harrison County line running in a southwesterly direction out of the hills to the Missouri river flood plains. At this point the Steer Creek and Little Allen join and, with other ditches, drain tubes and lateral tiles which empty into the Allen Creek, constitute the Allen ditch.
The portion which has been constructed and maintained by plaintiff for many years is approximately 18 miles long, runs in a general southerly direction to the Missouri river with a fall of slightly more than one foot per mile. The fall from the source of the contributing ditches to the point where the foothills meet the flood plains, a distance from five to seven miles, is about 325 feet.
A number of bridges cross the ditch to accommodate roads along the course of the flood plain. Over the years these had been a source of great trouble, catching trees, ice and other debris. At time of trial every bridge had been either raised, widened or both, or after having been torn out by floods, not replaced. Every span crossing the ditch was then a clear span bridge from 50 to 80 feet without piers or other obstructions in the channel.
The bridge formerly accommodating Highway 30 was a 70-foot pony truss type bridge with no piers or obstructions in the channel. Its replacement, being built at time of trial, provided for two rows of concrete piers, each 16 inches in diameter, with five piers in each row. The rows were to be approximately 26 feet apart, center to center, in the channel of the Allen ditch with the bridge floor to be raised 2 1/2 feet.
I. The construction of the bridge to accommodate Highway 30 had been commenced when plaintiff brought this action against the State, the Highway Commission and Capitol Construction Company seeking to enjoin them from proceeding with its construction. By amendment plaintiff sought to enjoin the highway commission from proceeding with letting of contracts for construction of twin bridges at a future date across Allen Creek to accommodate Interstate Highway I--29.
In both the original petition and amendment, seeking temporary and permanent injunctions, plaintiff alleged the construction in progress and proposed construction of the twin bridges would constitute obstructions of the drainage ditch which would cause ice, trees and other debris to become lodged in the ditch, cause silt to be deposited there, all of which would be detrimental to the district and cause the channel to become filled with silt, creating danger of serious damage to the improvements as well as a threat of substantial damage to the surrounding farmland in the event the obstructions complained of caused or contributed to floods.
In its separate answer defendant highway commission admitted the type of construction, but denied it was improper, illegal or would constitute a hazard to the drainage ditch and surrounding land or create a danger of serious injury to plaintiff's improvement. It affirmatively alleged plaintiff had a speedy and adequate remedy at law and so could not maintain this action unless fraud or mistake on the part of defendant was shown. This defendant further alleged it had secured a permit to establish the bridge from the Iowa Natural Resources Council and the law does not require submission of proposed improvements to this plaintiff.
After hearing on the temporary injunction it was agreed by all parties that the hearing be adjourned and the matter set for trial on the merits October 18, 1966. It was stipulated all evidence previously taken on the matter of the temporary injunction, including exhibits, should be considered in connection with the trial on the merits with leave to call any witness for direct or cross-examination. No temporary injunction was issued.
II. The issues presented to the trial court were whether plaintiff could enjoin further construction by the highway commission of the bridge according to the plans and specifications set out in the contract awarded to Capitol Construction Company and whether plaintiff could compel, by mandatory injunction, removal of the bridge as constructed.
At the trial after the parties had rested, defendant commission moved for dismissal of the action. The court sustained the motion as to the relief sought in the amendment relative to the granting of an injunction preventing the highway commission from proceeding with the letting of contracts for the construction of the I--29 twin bridges, but overruled the rest of the motion.
The trial court was of the opinion plaintiff should be granted no relief against defendant Capitol Construction Company which had been awarded the contract by the commission for construction of the bridge, it being merely an agent carrying out the contract with the commission.
At the point where Highway 30 crosses it, Allen Creek has a width at the bottom of the channel of approximately 25 feet with a slope on the west bank of approximately 2:1 and on the east bank of approximately 1:1. The width of the channel at the top of the dike is approximately 70 feet.
The soil in the upper reaches where the slope is greatest is very porous and subject to washing, resulting in a great deal of silt, as well as many trees and other debris, being washed into the stream and brought down at great speed from the hills, causing the stream to choke and overflow in the more level portions of the ditch.
Witnesses for both sides testified the construction of the bridge with piers in the channel would create an obstruction and hazard to the operation and maintenance of Allen ditch, even though the new bridge floor was to be raised. Defendant's engineers freely admitted the piers would catch trees and other debris when the ditch was up, and would tend to slow the flow of water, which would cause silt to be deposited in the stream, all of which would be an obstruction and a hazard.
The evidence is undisputed that during the times of spring run-offs, or heavy rains a great amount of trash, including trees with a width or span of more than 26 feet, frequently washes down the ditch and in many instances trees and debris became lodged at bridges which were larger and wider and with greater capacity than the bridge being constructed at the Highway 30 crossing.
It was also established that approximately 28,500 acres were drained by the Steer and Allen Creek ditches and their tributaries above the flood plain and approximately 20,000 acres of level, flat flood plain land were drained by the ditch between Highway 30 and the foothills.
Because the land in the flood plain through which the ditch flows is low and flat, the depositing of silt in the channel would clog and cover the drainage tubes and lateral tile drains emptying into the ditch, destroying the drainage provided by the ditch.
III. The trial court concluded the building of the bridge in question with pilings placed in the channel constituted an obstruction and would cause a grave danger of floods and other hazards to plaintiff district and the surrounding lands; defendant's acts...
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