Rosendahl Levy v. Iowa State Highway Commission
| Citation | 171 N.W.2d 530 |
| Decision Date | 14 October 1969 |
| Docket Number | No. 53341,53341 |
| Parties | ROSENDAHL LEVY and/or Drainage District, Robert Houlihan, as Trustee, and Carroll M. and Margaret E. White, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant. |
| Court | United States State Supreme Court of Iowa |
Richard C. Turner, Atty. Gen., Robert Merillat, Sp. Asst. Atty. Gen., James Graham, Asst. Atty. Gen., and Jacobson, Bristol & Thompson, Waukon, for appellant.
Strand & Kiener, Decorah, for appellees.
This is an action in equity for a mandatory injunction against the Iowa State Highway Commission. Plaintiffs allege defendant constructed U.S. Highway #52 by-pass near Decorah in a manner which caused surface water to drain over their land in excessive quantities and with accelerated velocity, causing severe and repeated damage. Plaintiffs claim, too, that such damage will recur unless the relief they seek is granted. The trial court found plaintiffs were entitled to an injunction and the highway commission appeals. We affirm.
Plaintiffs Rosendahl Levy and/or Drainage District and Robert Houlihan, Trustee of the drainage district, bring this action on behalf of individual owners of real estate within the district. Plaintiffs Carroll M. White and Margaret E. White own real estate in the district.
For some years Lawrence W. Rosendahl owned 26 acres of relatively level land lying at the base of a steep bluff in Winneshiek County. In 1959 he built 13 or 14 homes on this property, which he subsequently sold to various persons. The bluff lies to the west of these homes. It is described as densely wooded and heavily overgrown with grass and other vegetation.
This property lies in the flood plain of the Upper Iowa River, which caused serious flood damage in 1961. Principally because of this flood and in the hope of avoiding future similar experiences, the Rosendahl Levy and/or Drainage District was formed in 1962 under chapter 455, Iowa Code, 1958.
Subsequent to the formation of the drainage district the members thereof built a dike road, installed flood gates, and made their property as secure from river damage as reasonably possible. They claim--with considerable support in the record--there was then no reason to apprehend danger of excessive drainage or run-off from the hill to the west of their property. There had never been such a problem.
In 1962 work on U.S. Highway 52 by-pass was started. A right-of-way was obtained from Rosendahl, who had retained ownership of the bluff, and the road was cut out of the side of the hill. In connection with this construction changes were made in the contour of the hill, which had a rock base with a substantial covering of top soil.
The evidence shows practically all the topsoil was removed and the hill was taken down to its rock base. It is undisputed that topsoil and vegetation are essential to percolation, a process by which surface water sinks in, and is absorbed by, the soil. Elimination of this covering necessarily quickened the rate of water run-off from the highway site.
The record also shows the original peak of the hill was moved to a point some 300 to 400 feet away. Pipes, flumes and culverts were installed to collect and discharge surface water at selected spots in greater quantity and with greater force than before. There was evidence much of this run-off came at places which were not in the natural watercourse before the changes were made.
Soon after construction work started, drainage conditions changed dramatically. Where there had been no run-off problems, there was now almost constant difficulty. Water accumulated or ponded in the yards of the property owners. Silt, sand, dirt and debris washed down in great quantities. One witness testified he was required to repair his driveway three times because of water damage after the road work started. Another said that, where there had been only slight water drainage earlier, water now ran knee-deep on the hillside during a heavy rain.
On several occasions water ran so swift and deep there was difficulty getting in and out of driveways. At times silt and debris piled up to a depth of 28 inches. One witness said there was a 'regular cascade of water and muck when it rained.' Lawns, shrubbery, and plantings suffered frequent damage.
After the highway was completed, according to one witness, 'water came down the hill like a waterfall--18 inches to two feet wide.' This same witness stated her yard became virtually unusable because of repeated damage from run-off water.
In some instances the sand, silt and debris deposit was spread over a 100-foot radius. There was testimony that water came rushing down the ravine and 'rocks of every size were coming down.' Several witnesses said the natural run-off was clear before the road work, but afterward it was a gray, muddy, clayish looking color, thick with sediment and debris, and that it left a residue of this substance over the entire yard, sometimes to a depth of 14 to 16 inches.
Another witness testified that on one occasion after the highway was built, she heard a loud roar and looked out to see water, stones and mud coming down the hill very rapidly.
Frequently those living in the drainage district were required to remove trash and debris from their yards after a rain, as well as to spread out the accumulated silt so grass, bushes and shrubbery would not be permanently damaged. A cleanup of branches, logs, beer cans and other foreign material became routine after any storm.
The evidence shows construction work started with clearing, grubbing and grading, which was completed in 1963. Seeding had been planned for 1963 but was postponed because other related work was still in progress. The paving contractor began work early in the spring of 1964, and paving was finished late that summer. During that year the shoulders and ditches remained in what is called a raw state without grass or vegetation of any kind.
Although the commission disputes the amount of silt and other deposits upon plaintiffs' land, it does not deny some such damage did occur. The disagreement goes only to its extent. One of defendant's witnesses described the situation after one rain as 'a mess.' Another admitted the roadwork 'aggravated an existing problem.' A third testified he 'couldn't explain' the differences in drainage before and after the construction of the road as testified to by plaintiffs' witnesses.
These are the facts upon which plaintiffs base their prayer for injunctive relief. Defendant raises two principal propositions for reversal: first, it is immune from suit as an agency of the state in the absence of fraud, illegality or a showing it acted in derogation of its statutory authority; second, plaintiffs have failed to show substantial damage to their property. We discuss both propositions together.
Defendant's claim of immunity depends on several of our prior decisions, including Porter v. Iowa State Highway Commission, 241 Iowa 1208, 1217, 44 N.W.2d 682, 687; Rhodes v. Iowa State Highway Commission, 250 Iowa 416, 419, 94 N.W.2d 97, 99; and A and S, Inc. v. Iowa State Highway Commission, 253 Iowa 1377, 1384, 116 N.W.2d 496, 503. These cases all hold the commission's powers in planning, building, and maintaining highways are broad and plenary; that the commission is an arm of the state; and that courts should not interfere with its activities unless the commission acts in derogation of its statutory authority or unless fraud or illegality is shown.
Even if its plea of immunity fails, however, defendant contends plaintiffs have failed to establish their right to injunctive relief. As we discuss later, a court of equity grants an injunction only when a plaintiff proves, in addition to a violation of his rights, that substantial damage will probably otherwise result.
Defendant importunes us to find a failure of proof because whatever damage plaintiffs sustained resulted, not from defendant's conduct, but from an act of God--a five-inch rainfall which caused all of plaintiffs' trouble, and for which defendant should not be held responsible.
This occurred before erosion control had been established and, according to defendant there is now no danger of injury to plaintiffs' land.
Defendant attempted erosion control by standard methods. This consisted of seeding, fertilizing and sodding. Some areas were not subject to such control because they were predominantly rock, but where there was earth-rock mixture vegetation was possible. The work was started in the fall of 1964 and completed in 1965. A double application of seed and one of fertilizer were used. Embankment protection in the form of fiberglass mulch was added. Special seed was used, including types particularly suitable for hillside control. Where necessary ditches were sodded to help slow the run-off. There was undisputed testimony erosion control takes time to develop and improves itself over a period of years.
We mention parenthetically the trial court disregarded the torrential five-inch rain which defendant describes as an act of God in reaching its conclusions. Furthermore defendant's argument on this point would be more persuasive if it were not shown that conditions did not improve after erosion control had been completed in 1965.
Six months after the original trial ended--but before the trial court had made any findings--a motion to reopen for additional testimony was granted. The import of this testimony was that a 1.7-inch rainfall in June of 1967 had caused the same type of damage to plaintiffs as had resulted from earlier storms.
The evidence on reopening also showed erosion control had been successful in the area where the damage was most severe. It showed grass and vegetation growth to be 'very good.'
One of defendant's witnesses at the reopening hearing described the damage from the June 1967 rain as 'a very natural occurrence under the circumstances,' from which a conclusion the same situation would result from similar future rains appears...
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