Myers v. Caple

• Decision Date: 19 October 1977
• Docket Number: No. 2-58646,2-58646
• Parties: Richard MYERS and Kathryn C. Myers, Appellees, v. B. H. CAPLE and Linden Caple, Appellants.
• Court: Iowa Supreme Court

Page 301

258 N.W.2d 301

Richard MYERS and Kathryn C. Myers, Appellees, v. B. H. CAPLE and Linden Caple, Appellants.

No. 2-58646.

Supreme Court of Iowa.

Oct. 19, 1977.

Herrick, Langdon, Belin, Harris, Langdon & Helmick of Des Moines, and Nelson, Vasey & Cahill of Nevada, for appellants.

Don C. Swanson of Des Moines, for appellees.

Heard before MOORE, C. J., and MASON, LeGRAND, REES and UHLENHOPP, JJ.

LeGRAND, Justice.

This is an appeal involving a dispute between adjoining landowners in Polk County concerning drainage rights. The trial court enjoined completion of a proposed levee which would divert water across plaintiffs' property and directed removal of a portion of the levee which had already been built. Defendants appeal, and we reverse.

Plaintiffs (Myers) are husband and wife who own property on both the west and east banks of Indian Creek, a stream which runs an irregular course through their property. Defendants (Caple) own property a short distance east of that creek.

Indian Creek periodically overflows, causing some flooding on the land of both Myers and Caple. Although there have been a number of levees constructed upstream from this property, there has been no leveeing in the area with which we are now concerned.

In 1972 Caple explored the possibility of constructing a levee to protect approximately 70 acres from flood damage. He submitted plans for a proposed levee to the Natural Resources Council under the provisions of Chapter 455A, The Code. After some modifications had been made to meet objections raised by the council, this plan was approved and permission to erect a levee was granted.

The council's order contained a condition that it accepted no legal or financial responsibility arising from the construction or maintenance of the levee, and Caple admitted he had been orally advised he was "on his own" as far as construction of the levee was concerned.

Myers appeared at the hearing before the council and objected to the construction of the proposed levee. However, he did not appeal from the order permitting it. See § 455A.37, The Code.

When Caple began constructing the levee, Myers sought and secured a temporary injunction enjoining its completion. Later this injunction was made permanent in a decree from which Caple has taken this appeal.

The proposed levee is intended to protect a portion of Caple's land from the flooding to which it is now subject. The question we must decide is whether Myers would suffer such substantial and irreparable damage from the construction of the levee that he is entitled to injunctive relief.

I. The first issue to be resolved is a procedural one involving the effect of the order issued by the Natural Resources Council permitting Caple to erect the levee. Caple claims this is conclusive as to Myers' rights since Myers did not appeal. He argues failure to appeal is a waiver of any right to contest the building of the levee now.

To state the issue differently, Caple insists the district court had no jurisdiction over this matter because Myers failed first to exhaust the available administrative remedy by appealing from the adverse order of the Natural Resources Council.

Myers correctly points out this was not raised by Caple in the trial court and urges us to disregard it for that reason. However, the matter goes to jurisdiction of the subject matter, which can be raised at any time. Green v. Sherman, 173 N.W.2d 843, 846 (Iowa 1970); Steffens v. Proehl, 171 N.W.2d 297, 300 (Iowa 1969). The question is a proper one for consideration.

We decide this matter on the law as it stood before the adoption of the Iowa Administrative Procedure Act, which became effective July 1, 1975, subsequent to the events now before us.

When an administrative agency is created, its jurisdiction is ordinarily exclusive within the scope of its statutory authority. Judicial help may be sought only after all administrative procedures have been exhausted. State ex rel. Turner v. Iowa Electric Light & Power Co., 240 N.W.2d 912, 913-914 (Iowa 1976); Rowen v. LeMars Mut. Ins. Co. of Iowa, 230 N.W.2d 905, 909 (Iowa 1975); Charles Gabus Ford, Inc. v. Iowa State Highway Comm'n., 224 N.W.2d 639, 647 (Iowa 1974); Elk Run Telephone Co. v. General Telephone Co. of Iowa, 160 N.W.2d 311, 315 (Iowa 1968).

Much depends upon the legislative intent in establishing the particular administrative remedy. In determining such intent, it is important to examine the administrative remedies afforded. The absence of an adequate remedy is strong evidence the legislature did not intend the administrative agency to have exclusive jurisdiction of the dispute.

In Rowen we said:

"Exhaustion of Administrative Remedies. The exhaustion rule is inapplicable unless two conditions are present. An administrative remedy must exist for the claimed wrong, and the statutes must expressly or impliedly require that remedy to be exhausted before resort to the courts. Oliver v. Iowa Power and Light Company, 183 N.W.2d 687 (Iowa 1971); Elk Run Telephone Co. v. General Telephone Co. (160 N.W.2d 311 (Iowa 1968))." (230 N.W.2d at 909.)

In Gabus we said:

"Ordinarily an administrative remedy must be exhausted before resort can be had to the courts if an administrative agency has 'primary' or 'exclusive' jurisdiction of a controversy. The doctrine does not apply where, by the terms or implications of the statute authorizing an administrative remedy, such remedy is permissive only or not exclusive of the judicial remedy, warranting the conclusion that the legislature intended to permit resort to the courts even though the administrative remedy has not been exhausted. Oliver v. Iowa Power and Light Co. (183 N.W.2d 687, 691 (Iowa 1971)); Davis, Administrative Law Treatise (§§ 20.01, 20.10 (1959)); see also 21 Drake L.Rev. (1, 16-23); 73 C.J.S. Public Administrative Bodies and Procedure § 40, pg. 347, § 41, pg. 351.

" * * *

"A significant test of exclusiveness, and hence of whether primary jurisdiction can be said to exist, is the adequacy of the administrative remedy. Inadequacy of that remedy to provide the relief a litigant seeks constitutes some indication the remedy is not exclusive, and therefore, that an independent action can be maintained in a court before the administrative remedy is exhausted." (224 N.W.2d at 647.)

A similar statement appears in Oliver where this appears:

"One test of exclusiveness is whether the administrative remedy is adequate. Inadequacy of that remedy to provide the relief to which the litigant would otherwise be entitled constitutes some indication that the remedy is not exclusive and that an independent action in court can be maintained. * * * " (183 N.W.2d at 691).

In applying the foregoing principles to the controversy now before us, we are convinced the legislature did not intend Chapter 455A to vest exclusive jurisdiction of drainage differences between adjoining landowners in the Natural Resources Council.

Instead its primary purpose was to protect the state's interest in vital water resources. See § 455A.2. In doing so the statute directs the council to consider the rights of the property owners affected (§ 455A.20); but once council action has been taken, as it was in this case, the administrative agency is without power to remedy any resulting damage.

We find no authority by which the council could either award damages for injury to Myers' land or enjoin further damage to his property. While the cases are not factually alike, Natural Resources Council v. Van Zee, 261 Iowa 1287, 158 N.W.2d 111 (1968) discusses the rather narrow power of the council to remedy violations of Chapter 455A. That same reasoning is applicable here.

We hold this is not a case requiring Myers to exhaust the administrative remedies before seeking injunctive relief from a court of equity. The trial court had jurisdiction in this matter.

II. This brings us to the claim that the evidence does not justify granting injunctive relief, either prohibitory or mandatory. From our de novo review of the record, we agree.

The equitable power to enjoin is exercised only under extraordinary circumstances. It is not a routine remedy. It is designed primarily to avoid irreparable damage and to afford relief when there is no adequate remedy at law. Kriener v. Turkey Valley Community School District, 212 N.W.2d 526, 536 (Iowa 1973); Johnson v. Pattison, 185 N.W.2d 790, 797 (Iowa 1971); Maher v. Park Homes, Inc., 258 Iowa 1291, 1297, 142 N.W.2d 430, 434 (1966); 43 C.J.S. Injunctions § 23(a), (b), 446-448 (1945); 42 Am.Jur.2d Injunctions §§ 48, 49, at 787-790 (1969).

The party seeking an injunction has the burden to show not only a violation of his rights but also that he will suffer substantial damage unless one is granted....