Drainage Project Was Repair, Not Improvement; Costs To Be Borne By All Landowners in District

March 19, 2008 | Roger McEowen

Drainage law is important to many Iowa farmers, and the issues frequently involve not only principles of Iowa water law, but also statutes and regulations involving drainage districts and County officials.  That was certainly the situation in this case.

Here, the drainage district involved included about 2,400 acres.  It is a tile district (as opposed to an open ditch district) with a main tile running the length of the district.  The district is also characterized by a single assessment schedule, so all of the land in the district is assessed for any expenses the district incurs.  In 1992, a farmer in the district petitioned the County Board of Supervisors (Board) - the Trustees of the district – to correct a drainage problem on their property.  The Board commissioned an engineering firm to investigate the matter and the firm found that the tile serving the farm, while adequate to provide sufficient drainage, had become impacted by surface runoff from 1200 acres upstream which was also in the district.  The Board requested further review and that resulted in a 1995 report stating that improved surface drainage would increase the efficiency of the entire district’s tile system.  The 1995 report suggested that a shallow waterway be constructed to divert upstream surface flow before it reached the farmer’s tract.  The Board, however, didn’t act on the 1995 report or a subsequent 1996 report proposing the construction of a dike and waterway system to divert the surface water before it reached the farmer’s property.  The 1996 report also noted that the suggested plan would benefit the entire district.  

The farmer again petitioned the Board in 2002, and the Board hired another engineer to propose plans to deal with the farmer’s drainage issues.  That report was filed in 2005 and also proposed a dike and waterway system.  This time, the Board approved the proposal along with the engineer’s right-of-way and damage assessment report.  The estimated total project cost was about $25,000, or approximately $9.70 per acre.  The plaintiffs, other landowners in the district, sued claiming that the costs associated with the change to the drainage system should be borne by the farmer personally rather than by every landowner in the district.  The trial court disagreed and the plaintiffs appealed.

The appellate court affirmed.  The court noted the statutory distinction between a repair and an improvement (Iowa Code §468.126).  While a repair simply restores a drainage system to its original efficiency or capacity, an improvement expands, enlarges, or otherwise increases the capacity of the drainage system.  In addition, the Board has a statutory duty to maintain existing drainage systems by making necessary repairs which landowners cannot challenge (although notice and a hearing is required if the repair cost exceeds a certain amount).  But, if an improvement is involved, not only is notice and a hearing required (if the cost exceeds a set amount), landowners can file opposition to the proposed improvement.  

Here, the plaintiffs claimed the drainage work constituted an improvement that they could challenge.  The court disagreed, noting that no additional lands would be drained by the proposed project and the capacity of any tile would not be increased.  In addition, the plaintiffs’ own expert conceded that the drainage work would not be considered to be an improvement.  As for the cost of the project, the plaintiffs failed to carry the burden of proof that the assessment was excessive or unfair, and they didn’t propose an alternative amount.  The court also upheld the trial court’s finding that the drainage project would not alter the natural flow of water, but would instead alleviate excessive subsoil drainage.  Since the project would benefit all landowners in the district, assessing all landowners for the project was appropriate.  The plaintiffs also asserted a Constitutional Takings claim, but since the claim was not made at the trial court level, the issue wasn’t preserved for appeal. Allen v. Webster County Board of Supervisors, No. 8-077/07-0876, 2008 Iowa App. LEXIS 185 (Iowa Ct. App. Mar. 26, 2008).