Johnson v. Monona-Harrison Drainage Dist., MONONA-HARRISON

• Decision Date: 08 February 1955
• Docket Number: MONONA-HARRISON,No. 48657,48657
• Citation: 246 Iowa 537,68 N.W.2d 517
• Parties: Lillie S. JOHNSON, W. S. Whitlock et al., Louise MacMillan et al., W. A. Fischer, F. B. Ordway et al., Herbert Johnston, M. J. Murphy et al., Mary K. Lindsay et al., Hugh G. Gray et al., Glen Guttau et al., Augustus T. Hanson, L. W. Fischer et al., Joe Heistand et al., Ralph Mikkelson, W. L. Larimore et al., Will Hathaway et al., Pearl G. Huff, Frances M. Hussell, Donald Reese, Joe E. Weaver et al., E. E. Seybold et al., William Walters et al., Thomas M. Sorenson, F. G. Oliver et al., Clarence W. Fredrickson et al., Irvin T. Hansen, Appellants, v.DRAINAGE DISTRICT and Paul Anderson, Earl Rowland and Lennox Hanson, the Individual Members of the Board of Trustees of the Monona-Harrison Drainage District, and J. O. Shinn, County Auditor of Monona County, Appellees.
• Court: Iowa Supreme Court

Page 517

68 N.W.2d 517

246 Iowa 537

Lillie S. JOHNSON, W. S. Whitlock et al., Louise MacMillan et al., W. A. Fischer, F. B. Ordway et al., Herbert Johnston, M. J. Murphy et al., Mary K. Lindsay et al., Hugh G. Gray et al., Glen Guttau et al., Augustus T. Hanson, L. W. Fischer et al., Joe Heistand et al., Ralph Mikkelson, W. L. Larimore et al., Will Hathaway et al., Pearl G. Huff, Frances M. Hussell, Donald Reese, Joe E. Weaver et al., E. E. Seybold et al., William Walters et al., Thomas M. Sorenson, F. G. Oliver et al., Clarence W. Fredrickson et al., Irvin T. Hansen, Appellants, v. MONONA-HARRISON DRAINAGE DISTRICT and Paul Anderson, Earl Rowland and Lennox Hanson, the Individual Members of the Board of Trustees of the Monona-Harrison Drainage District, and J. O. Shinn, County Auditor of Monona County, Appellees.

No. 48657.

Supreme Court of Iowa.

Feb. 8, 1955.

Patrick J. Morrow, Onawa, DeVere Watson, Council Bluffs, and K. C. Acrea, Missouri Valley, for appellants.

Prichard & Prichard and Underhill & Underhill, Onawa, for appellees.

Lowell C. Kindig, Robert B. Pike, and Robert J. Hurst, Sioux City, amici curiae.

LARSON, Justice.

The above-captioned cases were consolidated for trial in the court below, whereby the evidence taken was made applicable to all. It appears in February, 1952, the trustees of the Monona-Harrison Drainage District passed a resolution under the provisions of section 455.135, Code of 1950 (now 1954) I.C.A., appointing Keyes C. Gaynor, a graduate engineer with some forty years experience, to make surveys and a report on a proposed repair, cleanout and improvement in the district. Pursuant thereto a report was filed May 8, 1953, which included a suggested plan and an estimation of cost at $490,000. Notice was given and hearings held upon the proposed improvement, and after several adjourned meetings and some amendments were accepted, the board on September 12, 1953, adopted the plan and ordered the work done.

The Little Sioux River starts someplace in Minnesota and has a water shed of about 2,800,000 acres. Among other counties in Iowa, it ran through a portion of Monona and Harrison Counties and emptied into the Missouri River. The West Fork of the Little Sioux River came from the west and north and joined the Little Sioux in Monona County, and the lands below this junction were subject to overflow and were nontillable most of the time. In 1904 the Monona-Harrison Drainage District was established to provide suitable drainage for these lands, and a main ditch constructed tapping the West Fork of the Little Sioux and running somewhat parallel with the Little Sioux southwestward, which also emptied into the Missouri River. It was successful in carrying the waters of the West Fork as well as many other drainage ditches, and sometime late a so-called 'equalizer' or connecting ditch was constructed between the main drainage ditch and the main channel of the Little Sioux River. The theory was that water would flow either way depending upon the stream carrying the greater volume at a given time, but as time went on the equalizer, providing a somewhat shorter distance to the Missouri River, became the main channel and carried nearly all the water from the Little Sioux River to the main ditch and thence to the outlet in the Missouri River. The flow during the flood of 1952 showed a measured flow of 18,000 second feet in the Monona-Harrison Drainage Ditch and only 3,000 second feet in the Little Sioux River south of the equalizer. As a result the lower Little Sioux became badly silted, and brush and trees have grown in the river bed. On the other hand the Monona-Harrison main ditch had to be deepened, widened and enlarged until it is now three times its original size, and the expense of levee repairs, cleanouts, and other necessary cost amounting to some $800,000 between the years 1943 and 1953, places an enormous repair burden on the taxpayers in the district.

The trustees as well as U. S. government officials have realized for some time that the main channel of the Little Sioux River south of the equalizer should be cleaned out, straightened and rehabilitated. A constant search was under way to find a feasible plan within reasonable cost, and several suggestions were under study. The most recent government Plan 'O' called for an expenditure of about $18,000,000 and a rather elaborate improvement. The trustees had considered and rejected as too costly a proposal costing over $1,000,000. Persons interested are divided, and perhaps this is the real crux of this controversy, on whether to await possible favorable government action on Plan 'O' or to act now upon the least expensive feasible plan possible to obtain. The board appears to have selected the latter plan with most property owners of the district in accord.

With this background we have the February action of the trustees appointing an engineer to make surveys and file a report for the board's consideration. It is clear in preparing this report and plat Mr. Gaynor, the engineer, did not go to the expense of making a completely new survey and taking cross-sections at the usual stations for the some seventeen miles involved in the project. Many earlier surveys had been made by other reliable parties, and he testified they were used to discover the extent of the cuts necessary to clean out and to construct the proposed new channel. This, plaintiffs say, discloses a grievous error, for in many places silting in the past six or more years since those surveys were made, make them inaccurate and unreliable.

The report and recommendation filed May 19, 1953, by Engineer Gaynor contained the following:

'Par. 1. During the last ten years there has been a continual increase in the amount of water coming down the Little Sioux River, the Maple River and other tributaries to the Monona-Harrison main ditch. * * * Inasmuch as the Monona-Harrison ditch was not originally designed or constructed to carry so large an amount of water, the ditch has been severely damaged during the past eight or ten years, and has required the expenditures of large sums of money every year to keep it in operating condition.

'Par. 2. * * * when the water is high in the Monona-Harrison main ditch it has been impossible to properly drain the land in the Monona-Harrison District, and because of that fact a large portion of the land in the district has had a nearly complete crop failure during the last several years.

'Par. 3. For the reasons above mentioned, I recommend the cleaning out of the old channel of the Little Sioux River from the mouth of the Maple River to the Missouri River. The cleanout from the Maple River to the Brown Grade in Monona County will average about six feet in depth, and from the Brown Grade to the Missouri River it will average about four feet in depth.

'Par. 4. I recommend the clearing of all brush and trees from the entire bed of the Little Sioux River south of the mouth of the Maple River, except where the cutoffs are constructed.

'Par. 5. I recommend the construction of two cutoffs as follows:

'a. The Hanson cutoff to be approximately two miles in length with 198 feet of right-of-way with a 50 foot bottom, with one to one side slopes, and an 80 foot top. The cut will average about 15 feet. * * * (Specific location set out here.)

'b. The Fredrickson cutoff to be approximately two miles in length with 198 feet of right-of-way, the ditch to have a 50 foot bottom, with one to one side slope. The cut will average about 12 feet and will have a 74 foot top. The specific location is as follows: (Description here.)

'Par. 6. I recommend that wherever the cutoffs across the channel of the Little Sioux River that the old channel be completely filled at the northern end. I further recommend that they also be filled at the southern end but that tubes be installed. I also recommend that the dikes on all cutoffs be set back to the full limits of the right-of-way.

'Par. 7. I recommend the construction of a concrete spillway in the Southeast Quarter of Section 17 and the West part of Section 16, Township 83, Range 44, said spillway to be 125 feet long, to be built, in the first instance, about seven feet below the ground level, and to be constructed so that it may be raised from time to time until it reaches two or three feet below the level of the ground. (Eventually, it may be possible to close the equalizer entirely.) This spillway is to be built along the west side of the Hanson cutoff, north of the present equalizer. The present channel of the Little Sioux River is to be closed off between the Hanson cutoff and the present equalizer, both north and south of the equalizer.

'Par. 8. I recommend the construction of desilting basins for the Beaver and Cottonwood Creeks, the desilting basin for Beaver Creek to be about 160 acres in extent, and located in section 21, township 83, Range 44, the desilting basin for Cottonwood Creek to be about 80 acres in extent and located in Section 28, Township 83, Range 44.

'Par. 9. I recommend the cleanout of the Little Sioux River from the point where it leaves the present Monona-Harrison Drainage District to the Missouri River, and that either the land through which said river flows be taken into the drainage district, or that easements be secured from the landowners granting permission for such a cleanout.

'Par. 10. Attached hereto and made a part of this report is a plan, consisting of three sheets, which shows the portion of the Little Sioux River to be cleaned out, as well as the proposed cutoffs. (See attached sketch). There is also attached a profile of the Little Sioux River, consisting of one sheet, upon which I have also placed a drawing showing a characteristic cross section of the Little Sioux River and a drawing of a cross section of the proposed cutoffs. This profile was prepared from certain cross sections made some years ago by the United States Corps of Engineers and from other data...