Iowa Natural Resources Council v. Van Zee

• Decision Date: 09 April 1968
• Docket Number: No. 52931,52931
• Citation: 158 N.W.2d 111,261 Iowa 1287
• Parties: IOWA NATURAL RESOURCES COUNCIL, Appellant, v. Allen VAN ZEE, Homer Boyd, and Wilber Van Zee, Appellees.
• Court: Iowa Supreme Court

Page 111

158 N.W.2d 111

261 Iowa 1287

IOWA NATURAL RESOURCES COUNCIL, Appellant, v. Allen VAN ZEE, Homer Boyd, and Wilber Van Zee, Appellees.

No. 52931.

Supreme Court of Iowa.

April 9, 1968.

Richard C. Turner, Atty. Gen., Fred Hendrickson, and Larry Seckington, Asst. Attys. Gen., for appellant.

Life, Davis & Life, Oskaloosa, for appellees.

LARSON, Justice.

Subsequent to the enactment of what is now chapter 455A of the Code of 1966, one of the defendants, Allen Van Zee, constructed certain levees and made channel changes on the land owned by defendants. It is alleged that at least portions of these structures were within the flood plain of the North Skunk River. Chapter 455A of the Code requires the approval of the plaintiff, Iowa Natural Resources Council, and a permit from it before such structures are constructed. However, it appears the existing structures were built without a permit and without the approval of plaintiff.

Upon written complaint of a third party, the plaintiff investigated the defendants' structures and construction and then ordered defendants to cease and desist from further construction. They refused to do so, and also refused to make application for a permit. Plaintiff then instituted an action in equity to enjoin the defendants from further construction and also praying for mandatory injunctive relief as to the already-existing structures. After answer and reply, a motion for an adjudication of law points under rule 105, R.C.P., was sustained by the trial court. Four law points were submitted for the trial court's determination. The first of these asked: 'In prosecuting this action pursuant to the claimed authority vested in it by the provisions of paragraph 4 of § 455A.33 of the 1966 Code, must the plaintiff establish by evidence more than that the defendants' structures, dams, obstructions, deposits or excavations, if such there be, are in fact within the flood plains as defined by law, and that in fact the defendants have failed to file a verified application as required by law?'

The trial court concluded the issue was merely one of statutory construction and held that paragraph 4 of § 455A.33 is not applicable to structures existing prior to the time the action was brought, because there is no authority to seek abatement of the existing structures by mandatory injunction under that paragraph. It did not pass on the other law points submitted, but concluded, in light of its ruling and determination under law point (1), that adjudication of the remaining law points would be merely academic in nature. The other questions submitted were directed to the constitutionality of the statute and the involved constitutional rights of the defendants. On September 27, 1967, this court granted plaintiff an interlocutory appeal.

Plaintiff contends that the trial court erred in ruling that paragraph 4 of § 455A.33 did not provide relief for already existing structures constructed without a permit, and that the statute is constitutional and a proper exercise of governmental authority. Defendants argue that all of chapter 455A is unconstitutional as an invalid exercise of police power.

I. It is a cardinal principle of statutory construction that the intent of the legislature is to be gleaned from the statute read as a whole, and not from any section or portion thereof taken piecemeal. City of Vinton v. Engledow, 258 Iowa 861, 140 N.W.2d 857; Rath v. Rath Packing Co., 257 Iowa 1277, 136 N.W.2d 410; City of Nevada v. Slemmons, 244 Iowa 1068, 59 N.W.2d 793, 43 A.L.R.2d 693. The problem presented requires us to examine carefully each of the provisions or paragraphs of § 455A.33 and to determine from a reading of all of them the legislative intent and purpose expressed therein.

Chapter 203, Laws of the Fifty-third General Assembly as amended, now provides in § 455A.33:

'It shall be unlawful to suffer or permit any structure, dam, obstruction, deposit or excavation to be erected, used, or maintained in or on any floodway or flood plains, Which will adversely affect the efficiency of or unduly restrict the capacity of the floodway, Adversely affect the control, development, protection, allocation, or utilization of the water resources of the state, or Adversely affect or interfere with the state comprehensive plan for water resources, or an approved local water resources plan, and the same are Declared to be and to constitute public nuisances, provided, however, that this provision shall not apply to dams constructed and operated under the authority of chapter 469 as amended.

'The council shall have the Power to commence, maintain and prosecute any appropriate action to Enjoin or abate a nuisance, including any of the foregoing nuisances and any other nuisance which adversely affects flood control.

'In the event any person desires to erect or make, or to suffer or permit, a structure, dam, obstruction, deposit or excavation, other than a dam, constructed and operated under the authority of chapter 469 as amended, to be erected, made, used or maintained in or on any floodway or flood plains, such person Shall file a verified written application with the council, setting forth the material facts, and the council after an investigation or hearing, shall enter an order, determining the fact and permitting or prohibiting the same, upon such terms and conditions as it may prescribe.

'The council shall have the Authority to maintain an action in equity To enjoin any such person from Erecting or making or suffering or permitting to be made by structure, dam, obstruction, deposit, or excavation other than a dam constructed and operated under the authority of chapter 469, For which a permit has not been granted.

'The council Shall have the power to remove or eliminate any structure, dam, obstruction, deposit or excavation in any floodway which Adversely affects the efficiency of or unduly restricts the capacity of the floodway, By an action in Condemnation, and in assessing the damages in such proceeding, the appraisers and the court shall take into consideration whether the structure, dam, obstruction, deposit or excavation is lawfully in or on the floodway.' (Emphasis added.)

The legislature specifically provided and enumerated in this section the grounds upon which the council could obtain abatement of an existing structure. Specifically, it provided relief by way of condemnation in the case of existing objectionable structures. Nevertheless, plaintiff contends that mandatory injunctive relief is also inferentially available under paragraph 4 by merely showing that the defendants' structures were within the flood plain and built without applying for and obtaining a permit. The trial court did not agree with this contention, and neither do we.

The granting of injunctive relief in most cases is limited to the restraining of actual or threatened acts injurious to the complainant's rights and is not to compel the undoing of an injury. Hanna v. Nowell (Mo.App.), 330 S.W.2d 595; 28 Am.Jur., Injunctions, §§ 3, 17. Such injunctions are commonly called prohibitory injunctions and have the effect of preserving the status quo and operate to restrain the commission or continuance of an act. Schubach v. McDonald, 179 Mo. 163, 78 S.W. 1020, 65 L.R.A. 136, 101 Am.St.Rep. 452, writ of error dismissed in Schubach v. Hough, 196 U.S. 644, 25 S.Ct. 797, 49 L.Ed. 632. Apparently this was the type of injunction visualized in paragraph 4 of this section.

However, a court of equity can and in a proper case will award mandatory injunctive relief which will compel some affirmative act, thus going beyond mere restraint. Falcon v. Boyer, 157 Iowa 745, 142 N.W. 427. Although courts look upon the latter with disfavor and such injunctions are granted with caution in cases of great necessity, they may be proper. Black v. Jackson, 177 U.S. 349, 20 S.Ct. 648, 44 L.Ed. 801; Lyle v. City of Chicago, 357 Ill. 41, 191 N.E. 255; 28 Am.Jur., Injunctions, § 20. This type of injunction has reasonable application under paragraph 3 of this section.

Injunctive relief by abatement is a harsh and severe remedy and, except in cases of nuisances or other great necessity, it should not be granted unless that authority is clearly and specifically provided by the legislature. Paragraph 4 of the section does not so provide.

The legislature here demonstrated it knew how to state this remedy in paragraphs 1 and 2. It is apparent, if it wished, it could have provided for Abatement as well as Restraint in paragraph 4. It did not choose to do so. Having not done so, it is reasonable to believe it did not wish to grant that extreme relief for the mere failure to obtain a permit. That being the case, plaintiff's appeal must be to the legislature, not to the courts.

It is well established that it is not the province of the courts to pass upon the wisdom, policy, or advisability of a statute. Rath v. Rath Packing Co., supra, 257 Iowa 1277, 1285, 136 N.W.2d 410; Dickinson v. Porter, 240 Iowa 393, 399, 35 N.W.2d 66, and citations; Steinberg-Baum & Co. v. Countryman, 247 Iowa 923, 929, 77 N.W.2d 15, 18; Town of Mechanicsville v. State Appeal Board, 253 Iowa 517, 529, 530, 111 N.W.2d 317. We conclude that the legislature envisioned the problem presented in the case at bar and selected the remedies it deemed appropriate in each situation. We should not, by judicial fiat, extend that authority, but carefully study each remedial measure to see what recourse was afforded the Natural Resources Council under all adverse circumstances.

II. The remedies the legislature did provide under § 455A.33 appear clear. Paragraph 2 authorizes mandatory injunctive relief for existing structures If they can be shown to be a nuisance. Paragraph 1 declares structures to be nuisances If they can be shown to 'adversely affect the efficiency of or unduly restrict the capacity of the floodway, adversely affect the control, development, protection, allocation, or utilization...