Middlefork Watershed Conservancy Dist., Matter of
| Decision Date | 03 June 1987 |
| Docket Number | No. 62A01-8609-CV-00251,62A01-8609-CV-00251 |
| Citation | 508 N.E.2d 574 |
| Parties | In the Matter of the MIDDLEFORK WATERSHED CONSERVANCY DISTRICT. Gilbert KLEAVING, Margi Kleaving, Marvin J. Ubelhor, Alva Kleaving, Wayne S. Kessens, Lucy Ubelhor, Charles E. Hattenbach, Sheila F. Hattenbach, Hubert Kleaving, Alice Kleaving, Wayne Kleaving, Hilarion Gaffinet, Cyril Kleaving, Harold Deom, Omir Deom, Alfred Deom, Robert Haring, Jr., Elmer Deom, Cletus Deom, Zella Deom, Mary Anna Gaffinet, Gordon Taylor, Allen Esarey, Gary A. Esarey, Alberta Esarey, Murl Taylor, Theresia Taylor, Alvena Mosby, and Frieda Kleaving, Plaintiffs-Appellants, v. BOARD OF DIRECTORS OF MIDDLEFORK WATERSHED CONSERVANCY DISTRICT, Defendant- Appellee. |
| Court | Indiana Appellate Court |
James M. Houck, Greencastle, John D. Clouse, Evansville, for plaintiffs-appellants.
Bruce E. Cissna, Dale, for defendant-appellee.
Petitioners appeal from the trial court's denial of their Petition for Mandate brought pursuant to Indiana Code section 13-3-3-48 to require the Board of Directors of Middlefork Watershed Conservancy District to maintain existing structures and to complete implementation of the District Plan. We reverse.
The Middlefork Watershed Conservancy District (District) was created on October 13, 1959, by order of the Perry Circuit Court pursuant to the Indiana Conservancy Act (Indiana Code section 13-3-3-1 et seq.). The purposes of the District are flood prevention and control and improved drainage of the area. The area concerned consists of 60,800 acres, representing a substantial portion of the middle fork of the Anderson River in Perry County, Indiana, with a small portion lying in Crawford County. To accomplish the designated purposes, the Board of Directors of the District (Board) adopted a District Plan, consisting of a "Final Plan" and "Work Plan", which was approved by the trial court in March of 1963 pursuant to Ind. Code Sec. 13-3-3-54. Plan preparation costs were provided by the U.S. Department of Agriculture, acting through the Soil Conservation Service. The Plan included an agreement between the District and Soil Conservation Service wherein the District would provide the land rights, be responsible for administering construction contracts, and maintain the completed structures, while the Soil Conservation Service agreed to bear the construction costs of the improvements contemplated.
The Plan provided a means to retard the rate of surface run-off upstream by construction of seven (7) flood-water retaining structures designated as Structures 1, 2, 3, 4, 5, 6, and 7, and to increase down-stream channel capacities to carry off flood waters and to improve drainage by means of 34.4 miles of channel improvement. Supplements 1, 2, and 3 to the Watershed Work Plan are agreements between local sponsoring organizations, the District, and the Soil Conservation Service to add recreational facilities to structures 1, 4, 5, and 6, all located on U.S. Forest Land Service land, and to reapportion some of the costs between the Forest Service and Soil Conservation Service. Structures 2 and 7 remained single-purpose structures and were to be located on private property. On January 8, 1965, the Board amended the Plan. The changed construction schedule provided for six (6) dams prior to commencement of the channel improvement work, and included the determination that ninety per cent (90%) of local costs be borne by adjacent landowners through exceptional benefit assessments. This amendment to the Plan was approved by the trial court, pursuant to I.C. Sec. 13-3-3-57, on March 20, 1965.
In accordance with the amendment, and pursuant to I.C. Sec. 13-3-3-61, the court appointed a Board of Appraisers. The appraisers report determined the amount of exceptional benefits that would accrue to certain real property in the District due to execution of the District Plan. This report The flood-water retarding structures were installed and 10.5 miles of channel improvement were completed. Due to environmental concerns, the remaining work was restudied and modified and incorporated as Supplement number 4 to the Work Plan in January of 1981. The modification eliminated 8.4 miles of proposed channel work and substituted therefor two (2) single-purpose flood-prevention structures, numbered 11 and 23. The remaining 15.5 miles of proposed channel work remained essentially unchanged from the original Plan. However, the Board has taken no steps, since adoption of Supplement No. 4, to finish construction. In addition, the District Plan has not been amended to incorporate the changes of Supplement No. 4 to the Work Plan.
was approved and adopted by the court on January 29, 1975, and the Perry County treasurer was appointed to collect the exceptional benefits assessments. These assessments were collected over a ten (10) year period and have now been paid by those assessed.
On April 9, 1982, the attorney for certain freeholders (Petitioners) made written demand on the Board to complete the improvements. A second request was made by the Soil Conservation Service at the Board's regular meeting on August 30, 1982. There was no evidence of maintenance of Structures 2 and 7, or the 10.5 miles of channel work. Consequently, a series of letters from the Soil Conservation Service, commencing May 11, 1981, called the Board's attention to the need for maintenance.
On December 20, 1982, the Petitioners filed a Petition for Mandate seeking to require the Board to properly operate and maintain the existing structures and to complete the remaining work. The Petitioners are owners of more than one half ( 1/2) of the bottom land within the District, and all were the subject of exceptional benefits assessments which they have paid. The Petitioners asserted they were not receiving the amount of flood-control or drainage benefits contemplated by the plan and are now required to maintain the channel at their own expense.
There was varied testimony at trial. The Petitioners asserted that over seventy-five per cent (75%) of the land rights for channel improvement would be donated by persons affected. The District treasurer testified that the assessed valuation of the District is approximately $4,500,000.00 and that the thirteen cent (13cents) tax levy budgeted the previous year raised about $5,500. The treasurer added that the District was unable to do more than the available money permitted. The approximately $5,500 annually raised by the Board is used to make payments on outstanding obligations to the State, which have an outstanding balance of $5,000 plus interest. In addition, testimony revealed the existence of pending suits against the District over alleged damages resulting from construction of structures presently in place, resulting in substantial costs and legal expenses. The treasurer further testified that the Board had initiated maintenance by mowing structures 2 and 7. Finally, the Board opined that any further implementation of the District Plan would require that the Plan be resubmitted to the court to include Watershed Work Plan No. 4. The Petitioners concurred that the Plan should be resubmitted to the court to reflect the changes proposed by Work Plan No. 4 pursuant to I.C. Secs. 13-3-3-53 and 13-3-3-57.
The trial court, in its judgment, found that the Act gives the Board great discretion in funding the contemplated work. In the court's opinion, original projections about the amount of funding necessary to complete the Plan were obviously erroneous. The court opined that any mandate it might order would necessarily force the Board to obtain large amounts of funds from one or more of its sources. Holding that decisions about whether to, how, and in what amount borrowing should be done by the District should be made by the Board, the court declined to mandate anything other than maintenance of existing structures and improvements as funds become available. The court noted that the Board members stand for review or election by a majority of the freeholders in the
District based on their action or inaction. The court further noted that Work Plan No. 4 was never submitted for its review but that the decision whether to submit it was for the Board. While safety factors were not an issue in the suit, the court noted that its ruling would be different if it were proven that lack of maintenance was causing serious safety problems. Thus, the trial court found that decisions on carrying out implementation of a complete plan and how to fund it are Board decisions. Thereafter, Petitioners perfected this appeal.
The basic issue presented for review is whether the provisions of the Conservancy Act, Indiana Code sections 13-3-3-1 et seq., relating to the development and implementation of a district plan and maintenance of existing structures, are mandatory or discretionary with the Board.
Determining legislative intent is foremost in construing any statute and, wherever possible, this court will give deference to that intent. Board of School Trustees of the South Vermillion School Corp. v. Benetti (1986), Ind.App., 492 N.E.2d 1098, 1102, trans. denied; Smith v. State ex rel. Medical Licensing Bd. (1984), Ind.App., 459 N.E.2d 401, 404; Indiana State Highway Comm'n v. Bates and Rogers Const., Inc. (1983), Ind.App., 448 N.E.2d 321, 324. Indispensible to ascertaining the legislature's intent is a consideration of the goals sought to be achieved and the reasons and policy underlying a statute. Frost v. Review Bd. of Indiana Employment Sec. Div. (1982), Ind.App., 432 N.E.2d 459, 461. Consequently, it is necessary to view a statute within the context of the entire act, rather than in isolation, when construing the statute. Smith, at 404; Indiana Dept. of State Revenue v. Estate of Wallace (1980), Ind.App., 408 N.E.2d 150, 154, trans. denied. Words in a statute are given their...
To continue reading
Request your trial
-
Rollins by Rollins v. Metropolitan Life Ins. Co.
...words or phrases of a contract are to be given their ordinary and popular accepted meaning."); In the Matter of Middlefork Watershed Conservancy Dist., 508 N.E.2d 574, 577 (Ind.App.1987) ("Words in a statute are given their plain, ordinary, and usual meanings, absent legislative expression ......
-
Yellow Cab Co. of Bloomington, Inc. v. Williams
...Under the rules for statutory construction, the provisions of a statute must be read in context. Matter of Middlefork Watershed Conservancy (1987), Ind.App., 508 N.E.2d 574. This court will give deference to the legislative intent and, where that intent has not been specifically stated, thi......
-
Indiana Dept. of Human Services v. Firth
...it is necessary to view the statute within the context of the entire act, rather than in isolation. Matter of Middlefork Watershed Conservancy Dist. (1987), Ind.App., 508 N.E.2d 574. We presume words appearing in the statute were intended to have meaning, Evansville v. Int'l Assoc. of Fire ......
-
State, Civil Rights Com'n v. Indianapolis Newspapers, Inc.
...purpose. May v. Department of Natural Resources, 565 N.E.2d 367, 371 (Ind.Ct.App.1991), trans. denied; In re Middlefork Watershed Conservancy Dist., 508 N.E.2d 574, 577 (Ind.Ct.App.1987); see 3 SUTHERLAND, § 57.19, at 47 (the general rule is that if a provision of a statute states a time fo......