This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1023

Lac Qui Parle-Yellow Bank Watershed District,

Respondent,

vs.

Bernard Wollschlager,

Appellant.

Filed November 12, 1996

Affirmed

Lansing, Judge

Lac Qui Parle County District Court

File No. C894233

Stephen Torvik, Nelson Oyen Torvik P.L.L.P., 221 North First Street, Post Office Box 656, Montevideo, MN 56265 (for Respondent)

David C. McLaughlin, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chartered, 212 2nd Street NW, Ortonville, MN 56278 (for Appellant)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

We review a district court decision finding that a landowner constructed and improved a drainage ditch without the necessary permit. The record supports the district court's decision, and the court acted within its discretion by requiring restoration of the property and attorneys' fees, remedies specifically allowed under the watershed district statutes. We affirm.

FACTS

Bernard Wollschlager purchased farm property in Lac Qui Parle County in 1988. Between 1989 and 1990, he constructed a ditch on his property. That ditch directed water from a field into a culvert running under a county road. Wollschlager did not apply for a ditching permit. During the summer of 1992, he deepened and improved the ditch.

An adjacent landowner, allegedly affected by the increased water flow, photographed the ditch and complained to a member of the watershed district board. The watershed district contacted Wollschlager, requesting him to stop ditching and to apply for a permit.

Wollschlager did not apply for or obtain a permit, and he was charged with violating Minn. Stat. § 103D.545, subd. 1 (1992); cf. Minn. Stat. § 103E.081, subd. 1 (1992) (prohibiting unauthorized drain outletting into drainage system). Wollschlager entered an Alford plea to the misdemeanor charge and in July 1993 was ordered to pay a $350 fine. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). The judgment did not address restoration of the property.

Following the criminal proceedings, the watershed district requested that Wollschlager restore his property to its preditch condition. Wollschlager refused, and in June 1994 the watershed district brought this civil action requesting restoration of the property and attorneys' fees and costs under Minn. Stat. § 103D.545, subds. 2, 3 (1992).

The September 1995 trial consisted of testimony from Wollschlager's neighbors and members of the watershed district board. The court also received photographic evidence of the ditch. After concluding that Wollschlager had constructed and improved a ditch without the required permit, the district court ordered restoration of the property and payment of $5489.90 in fees and costs. This appeal followed.

D E C I S I O N

Wollschlager raises four arguments in his appeal: (1) he was not required to obtain a permit because he did not construct a "new or improved" ditch within the meaning of the permit requirements, (2) the watershed district's inequitable conduct precludes an equitable remedy, (3) the restoration order is too vague to enforce, and (4) the statutory attorneys' fees are unreasonable.

I

The evidence supporting the district court's decision included testimony of several individuals that Wollschlager dug a ditch with his tractor in an area where there had been no ditch and that, as a result of Wollschlager's ditching, water was directed onto adjacent property. The district court also viewed photographic evidence of the ditch which showed freshly moved dirt. Watershed district board members testified that Wollschlager did not apply for a permit for the ditch construction. The district court chose to credit the testimony of the watershed district's witnesses. Due regard must be given to the trial court to judge the credibility of witnesses. Minn. R. Civ. P. 52.01; see also Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40 (Minn. 1988) ("Assessment of witness testimony is the unique function of the trier of fact."). The record supports the district court's findings and conclusions that Wollschlager's actions created a "new or improved outlet[] for [a] drainage system[] into existing legal drainageways" that required a permit under part III, section B, subdivision 3, of the Lac Qui Parle-Yellow Bank Watershed District Rules and Regulations and that the watershed district was entitled to have the land restored.

II

Watershed districts are established by statute to protect the public health and welfare and are treated by statute as governmental units. Minn. Stat. §§ 103C.231, subd. 1(c), 103D.201, subd. 1 (1992). Watershed district managers may enforce its rules by "injunction, action to compel performance, restoration, abatement, and other appropriate action." Minn. Stat. § 103D.545, subd. 2 (1992). Wollschlager argues that the watershed district should be estopped from obtaining equitable relief because it has not dealt with him equitably.

A party bringing a claim of estoppel against a governmental entity bears a heavy burden of proof. Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 292 (Minn. 1980). Before we will examine the equities of the circumstances surrounding the case, the party seeking estoppel must first show wrongful conduct on the part of the government. Id. at 293. Wollschlager asserts the watershed board's conduct was wrongful in three respects.

First, Wollschlager states that the watershed board met "illegally" when it decided to pursue a civil complaint against him and that the district court should have punished the board for this meeting by invalidating its actions. The district court did not find that the board violated the open meeting law. But even a violation of the open meeting law will not invalidate action taken at the meeting. In re Petitions of D & A Truck Line, 524 N.W.2d 1, 6 (Minn. App. 1994). Rather, Minnesota's "open meeting law" provides for the imposition of a civil penalty for intentional violations of the law. Minn. Stat. § 471.705, subd. 2 (1992).

Second, the board's customary practice of obtaining approval from downstream landowners for drainage permits is not inequitable or wrongful. This policy acknowledges the long-followed common law rule that surface waters cannot be unreasonably directed onto neighboring property. See, e.g., Sheehan v. Flynn, 59 Minn. 436, 449, 61 N.W. 462, 466 (1894). Wollschlager argues that, because the local rules fail to state this requirement explicitly, the board's procedures are not "in compliance with the law or procedures" and that as a consequence the board should not have been granted relief. The watershed district statute provides for an appeal from permit decisions. Minn. Stat. § 103D.537 (1992). If Wollschlager had applied for and was denied a permit because he failed to obtain the permission of his neighbors, he could appeal the decision and use the appeal process to demonstrate that permission was improperly withheld.

Third, the doctrine of laches does not bar relief. The watershed district contacted Wollschlager in May 1994, ten months after his criminal conviction, asking him to voluntarily restore his property. When he refused, the civil complaint followed. The watershed district diligently asserted its rights, and Wollschlager offered no evidence that he was prejudiced by the short delay between his criminal conviction and the watershed district's decision to file a civil complaint. Cf. Wheeler v. City of Wayzata, 533 N.W.2d 405, 409 (Minn. 1995) (stating that demonstration of prejudice is significant in determining whether doctrine of laches should apply).

Because the record contains no evidence of unconscionable conduct by the watershed district or evidence of an unconscionable result warranting denial or reversal of the relief granted, we conclude that the district court did not err in granting the watershed district the equitable relief permitted under the statute. Cf. Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn. 1979) (stating that district court's grant of equitable relief will not be reversed absent a clear abuse of discretion).

III

Wollschlager asserts that the district court's order for the restoration of his property is insufficiently clear for him to understand what actions he must take to ensure compliance. See Josephson v. Fremont Industries, Inc., 282 Minn. 51, 55, 163 N.W.2d 297, 301 (1968) (requiring that injunction cannot be so ambiguous or imprecise that it leaves the enjoined party in doubt as to his obligations). He further contends that injunctions are required to contain "specific criteria" before they will be enforced, and that the failure to provide such criteria is a ground for overturning the district court's order. In support of this proposition, he cites State by Lierfallom v. Sheriff, 296 Minn. 177, 207 N.W.2d 358 (1973). The supreme court in that case modified an injunction on the basis of an overbroad requirement for a landowner to remove fill that he had placed in a lake during a period in which the Commissioner of Conservation had not prohibited him doing so. Id. at 180, 207 N.W.2d at 360 (remanding to determine which part of fill placed in lake after effective date of Commissioner's order banning landowner's further placement of fill). The court in Sheriff did not hold that "specific criteria" are required for enforceable injunctions.

We disagree with Wollschlager's argument that the district court's order contains no discernible standards for compliance. The court has ordered the ditch filled so that it is roughly level with the surrounding land. The court's failure to provide Wollschlager with precise elevations does not make the order ambiguous. The district court concluded, and we agree, that mechanical precision is not necessary to restore the land to its previous condition. To mitigate Wollschlager's fear that he will not know if he is in compliance with the order, the district court provided that he and the watershed district could employ a neutral third party. Finally, nothing in the court's order prohibits Wollschlager from hiring a professional land surveyor to determine if the filled ditch is level.

IV

The district court awarded attorneys' fees and costs to the watershed district pursuant to Minn. Stat. § 103D.545, subd. 3 (1992). Wollschlager argues that the award was inappropriate because the evidence submitted by the watershed district's counsel failed to establish the reasonableness of the fees requested. See id. (allowing award of "reasonable" fees and costs). The record includes a substantial amount of evidence on attorneys' fees, including multiple affidavits and billing statements. Based on this evidence, the district court concluded that the prevailing attorney's accounting was "thorough and reasonable." Wollschlager protests that the evidence was insufficient to establish the reasonableness of the allowed costs, but the reasonableness of the value of legal services is a question of fact to be determined by the evidence submitted and by the court's own knowledge of the case. State by Head v. Paulson, 290 Minn. 371, 373, 188 N.W.2d 424, 426 (1971). The district court's findings were not clearly erroneous. See Amerman v. Lakeland Dev. Corp., 295 Minn. 536, 537, 203 N.W.2d 400, 400-01 (1973) (on review of award of attorneys' fees, district court's findings must be upheld unless clearly erroneous). The court's order demonstrated that it appropriately considered the evidence submitted and found the fees reasonable.

Affirmed.