New Developments in Drainage Case
We reported on this case two years ago. Now, there is another development to report. By way of background on this drainage dispute, Iowa law specifies that the natural drainage of surface water cannot be diverted by one landowner to the damage of another landowner. But, courts only grant injunctive relief in situations where it is necessary to prevent irreparable harm or afford relief where there is no other adequate remedy. A drainage issue and injunctive relief were involved in this case.
Here, two neighboring (adjacent) property owners built homes in a newly developed subdivision. The defendants, after the developer had made the final grading to the lot, brought in numerous truckloads of dirt for landscaping purposes and also constructed a berm between the adjacent properties. After the defendants’ landscaping project was complete and the berm was constructed, the plaintiffs began experiencing water problems on their property. The flowage of the water from the defendants’ property to the plaintiffs’ property in an increased amount caused problems for the plaintiffs – pooled water in their backyard, sump-pump running much more frequently, inability to mow or walk in certain areas, etc. The plaintiffs sued for injunctive relief – they wanted the defendants to be stopped from obstructing the natural flow of water between their properties. The trial court did find that the defendants had obstructed the natural flow of the water, but didn’t award injunctive relief because the court did not believe the evidence showed the plaintiffs’ problems were that severe.
On appeal, the court reversed. The court noted that all the defendants had to do to eliminate problems for the plaintiffs was to remove some of the fill dirt and eliminate the berm, and that doing so wouldn’t harm them at all. As such, the court ruled that was the only effective remedy for the plaintiffs and granted them injunctive relief. Lysenko v. Jensen, 2008 Iowa App. LEXIS 497 (Iowa Ct. App. Jul. 16, 2008).
In Oct. 2008, on remand the trial court entered a permanent injunction directing the defendants to “cease and desist any activities on their property that would stop or divert the natural water flow.” The trial court further ordered the defendants to re-grade their property immediately, remove the berm, and take actions necessary to “stop the blockage of the free flow of the natural waterway.” Three weeks later, the plaintiffs filed an action for contempt, the subject of this appeal. They claimed that their neighbors had not complied with the trial court’s order.
A hearing was held before the trial court and the defendant wife testified that she was 78-years old and was the full-time caretaker of her 81- year old husband who was suffering from Alzheimer’s. She further testified that she fully intended to comply with the contempt action, but was unsure how to do so. After the contempt action was filed, she had contacted four contractors. Each contractor told her that the work would have to wait until after the spring thaw. Upon hearing all evidence, the trial court ordered that the defendants were not yet in contempt and that they should be afforded the opportunity to comply. The court ordered that “actions must be taken immediately so that the drainage issue is resolved no later than May 1, 2009.”
On May 4, 2009, the plaintiffs filed another contempt action asserting that the defendants had not complied. The plaintiffs went so far as to call the defendants “urban terrorists” in their complaint. A hearing on the second contempt action was held on Aug. 6, 2009. Noting that the defendants’ contractor had quit, the court extended the deadline to Oct. 15, 2009. The defendants were to submit a “plan” to the plaintiffs’ attorney by Sept. 1, 2009.
Once again, nothing happened. At the end of September, the plaintiffs re-filed an application for contempt. They alleged that the defendants had fired the engineering company hired to remediate the problem without cause. A hearing was held on Nov. 12, 2009, and the court ordered that any property line barriers be removed to allow for the free and unobstructed flow of water immediately. The problems continued after the defendants hired a landscaper to do the work on their property to remediate the problem. The plaintiffs were not satisfied with the work and claimed that the berm remained beneath the fence obstructing water flow.
At this point, the trial court had enough with the proceedings. On Jan. 13, 2010, they issued an order concluding that the defendants had complied with the court’s order and were not in contempt. The plaintiffs appealed, arguing that the defendants should have been found in contempt and that the trial court had “diluted” the prior appellate court opinion.
The Iowa Court of Appeals first addressed the contempt issue. In Iowa, contempt can be an “illegal resistance to any order.” A finding of contempt in this case would have required willful disobedience or “conduct that is intentional and deliberate with a bad or evil purpose.” The court did not find such conduct in this case. While the defendants’ behavior did cause some delays and the work took longer than expected, the defendants were not willfully disobedient.
The appellate court next addressed plaintiffs’ allegations that the trial court “diluted” the prior appellate opinion. The court stated that they were not sure whether the problem was actually taken care of consistent with their prior order. Thus, the court did not find the defendants in contempt, but did not foreclose the option of further proceedings between the parties. The court noted that “the behavior of the parties made the proceedings on remand prolonged and difficult.” Thus, we may not have seen the end of these friendly neighbors. Lysenko v. Jensen, No. 0-712/10-0270 (Iowa Ct. App. Oct. 20, 2010).
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