Kadlec v. Greendale Tp. Bd. of Tp. Sup'rs

• Decision Date: 15 September 1998
• Docket Number: No. 970359,970359
• Citation: 583 N.W.2d 817,1998 ND 165
• Parties: Ray KADLEC, Petitioner and Appellee, v. GREENDALE TOWNSHIP BOARD OF TOWNSHIP SUPERVISORS, Respondent and Appellee. Richland County Water Board, Richland County North Dakota, Respondent and Appellant. Civil
• Court: North Dakota Supreme Court

Page 817

583 N.W.2d 817

1998 ND 165

Ray KADLEC, Petitioner and Appellee, v. GREENDALE TOWNSHIP BOARD OF TOWNSHIP SUPERVISORS, Respondent and Appellee Richland County Water Board, Richland County North Dakota Respondent and Appellant.

Civil No. 970359.

Supreme Court of North Dakota.

Sept. 15, 1998.

Joseph J. Cichy, of Olson Cichy, Bismarck, for petitioner and appellee.

Steven J. Lies, of Lies & Bullis, Wahpeton, for respondent and appellee.

Duane R. Breitling, of Ohnstad Twichell, Fargo, for respondent and appellant.

MESCHKE, Justice.

¶1 The Richland County Water Resource District (District) ¹ appealed a judgment granting Ray Kadlec a writ of mandamus directing the Board of Supervisors of Greendale Township (Township) to install a culvert through a road adjacent to Kadlec's land. We conclude the trial court did not abuse its discretion in granting the writ and, therefore, we affirm.

I

¶2 Kadlec owns land in South Dakota located directly south of the North and South Dakota state line. Robert Vellenga owns the land north of and adjacent to the Kadlec property in Greendale Township, Richland County, North Dakota. Between the Kadlec and Vellenga properties is a Greendale Township road running in an east-west direction that has existed since the 1960s. The road is commonly dubbed the "State Line Road" even though it is located in North Dakota. A slough is located on the Kadlec property next to and south of the State Line Road.

¶3 There is no artificial drainage into the Kadlec slough but, during wet years, the slough overflows and runs north to State Line Road at a point across from the Vellenga property. State Line Road dams and retains the water on the Kadlec property and, during periods of extreme overflow, the accumulating water runs westward onto property owned by others. In 1995 and 1997, the water overflowing from the slough washed out a portion of the State Line Road 33 feet long, 14 feet across, and 4 feet deep.

¶4 In April 1995, Kadlec petitioned the District for placement of a culvert under the State Line Road. After initially denying the request, the District amended its decision and authorized Kadlec to ditch eastward on the south side of the State Line Road to an existing culvert. In May 1995, Kadlec, along with the Township and others, petitioned the District for placement of a culvert under the State Line Road. The District denied the petition.

¶5 In February 1997, Kadlec again petitioned the District for authorization to place a culvert under the State Line Road. However, the District deferred acting on the petition "until the natural [sic] has been cleaned and work is done on Dr. # 3 to improve the drain so it can handle the water." The District had no plan or time frame for working on Drain No. 3, the prerequisite it set before it would consider authorizing the culvert. Kadlec withdrew the petition.

¶6 In August 1997, Kadlec sued the Township for an alternative writ of mandamus to compel the Township to install the culvert under the State Line Road. At the urging of the trial court, the parties stipulated to adding the District as a party-respondent to the action. The court further directed that copies of relevant documents be served on Vellenga, the downstream landowner of the property the water would first flow over if the culvert was installed.

¶7 After a hearing, the trial court found Kadlec had no plain, speedy and adequate remedy in the ordinary course of law, and ruled Kadlec, under N.D.C.C. § 24-03-06, had a "legal entitlement to the installation of the culvert as the roadway cannot be allowed to act as a dam or dike and water must be allowed to follow its natural and ordinary course." The court found no potential public injury would be caused by the culvert's installation, and that it would be "beneficial for the travel[ ]ing public." The court granted the writ of mandamus, directing the Township

to install an appropriately sized and placed culvert in the roadway between the Kadlec and [Vellenga] properties on or before November 21, 1997. The Township Board shall consult with the Water Board regarding the size and placement of the culvert and that that consultation must be completed by Friday, November 7, 1997, at 5:00 p.m., after which time the Township has the authority to place the culvert unless both sides agree that the consultation shall be extended subject to the November 21, 1997, deadline. The Township Board has the ultimate authority regarding the sizing and placing of the culvert.

Only the District has appealed.

II

¶8 Under N.D.C.C. § 32-34-01, a trial court may issue a writ of mandamus to "any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station." An applicant for a writ of mandamus must demonstrate a clear legal right to the performance of the act and must have no other plain, speedy and adequate remedy in the ordinary course of law. Old Broadway Corp. v. Backes, 450 N.W.2d 734, 736 (N.D.1990). The issuance of a writ of mandamus is left to the sound discretion of the trial court, and we will not reverse the court unless, as a matter of law, the writ should not issue or the court abused its discretion. Krabseth v. Moore, 1997 ND 224, p 6, 571 N.W.2d 146. As we have often explained, as in Gowin v. Trangsrud, 1997 ND 226, p 8, 571 N.W.2d 824, a court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process.

¶9 We reject the District's argument that summary judgment standards under N.D.R.Civ.P. 56 should be applied in our review of the trial court's decision. The court invited the parties to submit evidence at the hearing, but they all said they had no dispute with factual assertions made in the affidavits, attachments, and exhibits already presented to the court. Because there were no factual disputes, the court treated all factual assertions in the affidavits and attachments as "the factual findings for this mandamus proceeding." The clearly erroneous standard under N.D.R.Civ.P. 52(a) applies to a trial court's findings of fact made from undisputed or documentary evidence. See Stracka v. Peterson, 377 N.W.2d 580, 582 (N.D.1985). We apply the clearly erroneous standard in reviewing the court's factual findings in this case.

A

¶10 The trial court ruled the Township had the legal authority to decide whether the culvert should be installed under the State Line Road. The District baldly asserts, in a footnote in its brief and without any legal analysis at all, that it has sole authority to allow or disallow installation of the culvert in this case. The District claims resolution of this authority issue is not necessary because Kadlec failed to meet the requirements for obtaining a writ of mandamus. We disagree with the District's peculiar position that resolution of the authority issue is unnecessary. This case hinges upon who has authority over installation of the culvert.

¶11 Several times in the past, this Court has ruled the board of township supervisors has the authority to install culverts in township roads when necessary to preserve a natural drainway for surface waters. See Lemer v. Koble, 86 N.W.2d 44, 47-48 (N.D.1957); Viestenz v. Arthur Tp., 78 N.D. 1029, 1034, 54 N.W.2d 572, 575 (1952); see also Olson v. Cass County, 253 N.W.2d 179, 183 (N.D.1977). The District's position seems to be that later legislation amending statutes for water resource districts has made these cases obsolete.

¶12 The statutory powers of the Township and the District are found in N.D.C.C. Titles 24 and 61, respectively. Statutory interpretation is a question of law fully reviewable on appeal. Heck v. Reed, 529 N.W.2d 155, 160 (N.D.1995). The primary goal in construing statutes is to ascertain the legislature's intent. Northern X-Ray Co. v. State, 542 N.W.2d 733, 735 (N.D.1996). In ascertaining legislative intent, we first look to the language of the statute, giving the language its plain, ordinary meaning. Raboin v. North Dakota Workers Compensation Bureau, 1997 ND 221, p 17, 571 N.W.2d 833. As we said in Interest of K.G., 551 N.W.2d 554, 556 (N.D.1996), we interpret statutes in context, endeavoring to give meaningful effect to each statute on the same subject without making one or the other useless.

¶13 The board of supervisors of any township in the state has general supervision over the roads, highways, and bridges throughout the township. N.D.C.C. § 24-06-01. "Supervise" means "to coordinate, direct, and inspect continuously and at first hand the accomplishment of," and to "oversee with the powers of direction and decision the implementation of one's own or another's intentions." Webster's Third New International Dictionary, at p. 2296 (1971). Section 24-03-06, N.D.C.C., imposes upon a board of township supervisors a duty to not construct or reconstruct a road in a way that blocks a natural watercourse:

Any and all highways of any kind hereafter constructed or reconstructed by the department, any board of county commissioners, any board of township supervisors, their contractors, subcontractors or agents, or by any individual firm, corporation, or limited liability company must be so designed as to permit the waters running into such ditches to drain into coulees, rivers, and lakes according to the surface and terrain where such highway or highways are constructed in accordance with scientific highway construction and engineering so as to avoid the waters flowing into and accumulating in the ditches to overflow adjacent and adjoining lands. In the construction of highways, as herein provided, the natural flow and drainage of surface waters may not be obstructed, but such water must be permitted to follow the natural course according to the surface and terrain of the particular terrain.

Still, the township does not act in a void.

¶14 When construction,...