This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-1296

 

 

In Re the Matter of the Appeal by the Art and DeWayne

Nohl Family Partnership, et al., of the Redetermination

of Benefits of Joint County Ditch No. 9 of Swift,

Stevens, and Pope Counties, Minnesota.

 

 

Filed May 1, 2001

Affirmed

Schumacher, Judge

 

Swift County District Court

File No. C097149

 

 

William G. Peterson, Peterson Law Office, P.A., 3601 Minnesota Drive, Suite 880, Bloomington, MN 55435 (for appellants Nohl Family Partnership and family members)

 

Gerald W. Von Korff, John C. Kolb, Rinke-Noonan, 400 First Street South, Suite 700, Post Office Box 1497, St. Cloud, MN 56302-1497 (for respondent Joint Drainage Authority of Swift, Stevens, and Pope Counties)

 

 

            Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, ROBERT H., Judge

            The Art and DeWayne Nohl Family Partnership and family members (the landowners) appeal from a district court judgment affirming a decision of respondent Joint Drainage Authority of Swift, Stevens, and Pope Counties (the joint drainage authority) that their land parcels receive an economic benefit from Joint County Ditch No. 9.  The landowners contend that the evidence demonstrates their properties are too high and distant from the ditch to benefit from it and that they are being taxed for the exercise of their common-law right to use their land.  We affirm.

FACTS

            Joint County Ditch No. 9, located in Swift, Stevens, and Pope counties, was established in 1915 under the then-existing drainage code.  The drainage area for the ditch is approximately 54 square miles, and the landowners' property is located within this watershed.  Over the years, the landowners have privately installed an extensive system of ditches and tiles.  Water from their land, which is higher than the ditch, eventually flows into the public drainage system.

            In 1994, a petition for repair of the ditch was filed with the drainage authority.  As part of the process, the joint drainage authority ordered a redetermination of the benefits that the various parcels of land within the watershed derived from the ditch, so that maintenance and repair costs could be distributed fairly.  The landowners' property, which had not previously been included as land benefited, was among those considered.

            The joint drainage authority appointed three viewers.  They had three tasks: to verify the watershed boundaries; to verify or confirm the existence of a drainage benefit to the land parcels within the watershed boundary; and to determine the amount of economic benefit to lands deriving a drainage benefit.  The viewers issued a report finding, in relevant part, that the landowners' parcels benefited from the ditch.  The joint drainage authority ultimately accepted the report, and the landowners sought district court review.

            The district court heard testimony from the chief operating manager of the family partnership, two engineers, and one of the viewers.  Based on the evidence, it determined the land benefited from the ditch, affirming the decision of the joint drainage authority.  This appeal followed.

D E C I S I O N

            Findings of fact will be reversed only if clearly erroneous.  In re Petition for Improvement of Murray County Ditch No. 34, 615 N.W.2d 40, 49 (Minn. 2000).  An appellate court will conduct de novo review of questions of law.  Id. at 45

            This proceeding began with a petition for repair of the ditch.  Minn. Stat. § 103E.715, subd. 1 (1998).  The costs of repairing the ditch are apportioned pro rata among the properties deemed to receive a benefit from it.  Minn. Stat. § 103E.728, subd. 1 (1998).

            When, as here, the ditch is in several counties, a joint county drainage authority composed of county board members from each county will make the required determinations.  Minn. Stat. § 103E.235, subd. 2 (1998).  The statute lays out a detailed procedure for the drainage authority to determine the benefits of a ditch to the landowners, including a survey, a report by viewers, notice to the affected the landowners, and a hearing.  Minn. Stat. §§ 103E.241-.345 (1998).  When a petition for repair is filed, a similar procedure with viewers and a hearing may be used to determine whether property owners not previously assessed benefit from the ditch.  Minn. Stat. § 103E.741, subds. 2, 3 (1998).  The properties determined to benefit will be included in the assessments for the repair of the drainage system.  Minn. Stat. § 103E.741, subd. 5 (1998).

            Any aggrieved party may seek district court review of a decision by a drainage authority.  Minn. Stat. §§ 103E.741, subd. 4; 103E.091, subd. 4.  The hearing is de novo.  In re Branch A-38 of Joint Ditch No. 204, 406 N.W.2d 524, 525 (Minn. 1987).

            Only the issue of whether the landowners' property benefits from the ditch is before this court.  This presents a question of fact.  Seidlitz v. County of Faribault (In re Repair of County Ditch No. 1),  237 Minn. 358, 362, 55 N.W.2d 308, 311 (1952).  The viewers are to consider

whether the property is benefited immediately by the construction of the proposed drainage project or the proposed drainage project can become an outlet for drainage, makes an outlet more accessible, or otherwise directly benefits the property.

 

Minn. Stat. § 103E.315, subd. 5(a); see Minn. Stat. § 103E.741, subd. 2 (providing viewers considering property not previously assessed shall prepare report pursuant to section 103E.315).  While land must be within the watershed to be assessed a benefit from a ditch, its inclusion in this area in itself is insufficient to constitute an assessable benefit.  Seidlitz, 237 Minn. at 363, 55 N.W.2d at 312.  But a lack of physical connection to a ditch does not mean that the landowner has not received any assessable benefits from the ditch.  Id. at 365, 55 N.W.2d at 313.

Where the evidence sufficiently establishes as a fact, to be tested here as any other fact, that the drain has enabled the water on an upper tract to escape faster after construction of the drainage system, by drawing off the water on lower levels, an assessment is permissible; and if it can be shown that a tract of land has been so benefited it may be assessed in a repair proceeding, even though it was omitted in the original proceeding.

 

Id.

            The landowners argue that they have a common-law right to use and improve their land reasonably.  See Sheehan v. Flynn, 59 Minn. 436, 442, 61 N.W. 462, 463 (1894) (discussing right).  They contend  that they were acting in good faith under this doctrine, which includes "the right to drain surface water and cast the water upon the burdened land of a neighbor."  Matter v. Nelson, 478 N.W.2d 211, 214 (Minn. App. 1991) (footnote & citation omitted).    The landowners also dispute the determination that they benefited from the ditch, citing the witnesses whose testimony supports the landowners' contention and criticizing the viewers' methods of determining the benefits.  Consequently, they assert that the assessment was unconstitutional because it constituted a taking without due process.  Seidlitz, 237 Minn. at 361, 55 N.W.2d at 311.

            The legislature has enacted drainage laws to address the need for ditches and the consequent benefit or damage to the affected landowners.  Lippman v. Huhn, 249 Minn. 1, 14, 81 N.W.2d 100, 108 (1957).  The district court, applying this law, found that the landowners' improvements increased the rate and volume of water flow from their land to the ditch, and that this could not have been accomplished without the construction of the ditch, providing an outlet for additional waters.  Without the ditch, the improvement drainage would have caused damage to downstream owners.  The court noted that a diminishing efficiency rate was applied to land at higher elevations and more distant from the ditch, to account for the lower benefit such land would receive.

            The district court's findings are based on its assessment of the conflicting testimony.  They are supported by the record and are not clearly erroneous.  The landowners have not demonstrated that this application of the drainage law infringes on their common-law right to use their land.

            Affirmed.