In re Petition to Abandon County Ditch No. 13
In re Petition to Abandon County Ditch No. 13
Opinion of the Court
Landowners who petitioned for abandonment of a county drainage ditch pursuant to Minn. St. 106.661 and obtained from the Board of County Commissioners of Pope County an order authorizing such abandonment appeal from an order of the district court which vacated the board’s order. We reverse.
The statute provides that “if it appears the ditch serves any useful purpose to any lands or property or the general public, the petition for abandonment shall be denied.” (Italics supplied.) The district court found after a trial de novo that the ditch did benefit some property and concluded that the board had exceeded its statutory power. The question presented on appeal is whether the word “any” is to be read so literally as to require continued maintenance of the ditch, however speculative or insubstantial the benefits or however inequitable the assessments therefor. We think there is room within the statutory framework for the exercise of judgment by the county board.
County Ditch No. 13 is a 29-inch, buried tile conduit approxi
The buried tile conduit which constitutes the ditch is itself in a serious state of disrepair. The viewers appointed by the board of county commissioners assumed that the ditch was functioning to some extent because they observed upwelling of water from two intermediate breaks. But the outlet into the Chippewa River was not visible because it was below the surface of the river. Although the viewers located the outlet by probing with a stick, they could not determine if any water was emitted therefrom. One of these viewers testified, and the district court found, that the ditch operates at approximately 50 percent of capacity. However, this viewer acknowledged that he. was “just guesstimating.” There is no reliable evidence to show the extent to which the ditch is functioning.
Whatever the extent to which the ditch is functioning, the benefits derived from its continued maintenance appear insubstantial, particularly in relationship to the assessments borne by those landowners whose property is not benefited. The district court found that the ditch benefited (1) two landowners, Donald Thompson and DeWayne Larson; (2) New Prairie Township and Pope County Roads; and (3) the sewage disposal system of the city of Cyrus.
The Thompson and Larson properties are located south of New Prairie Township road. So long as the culvert under the road re
With the respect to the New Prairie Township and Pope County roads, both of which abut Danielson Lake, the district court found that standing water tends to cause deterioration of the roadway. Since Danielson Lake will not be completely drained even if the ditch is maintained, the benefit derived by these roads is limited to the additional deterioration caused by the higher levels which might result if the ditch were abandoned. This benefit appears relatively minimal.
Finally, the district court found that the ditch was a direct outlet for effluent from a sewage filtration plant operated by the city of Cyrus north of the New Prairie Township road. The evidence does not reveal whether the city applied for or received permission to make this sewage connection pursuant to Minn. St. 106.561. If this use is not permitted, it is not protectable under the abandonment provisions. If it is a permitted use, we must presume that the requirements of Minn. St. 106.561, subd. 3, were followed and the city assessed for the benefits derived. Yet the December 1972 assessment for repair of the ditch shows only a small percentage of the costs being borne by the city. This recent assessment thus confirms that any benefit derived by the city is relatively insubstantial.
The assessments levied on the Thompson and Larson prop
This petition for abandonment was apparently filed to avoid further assessments for restoration and repair. Minn. St. 106.661 provides two grounds which may be asserted in a petition for abandonment:
“The petition shall designate the ditch proposed to be abandoned and set forth that the ditch is no longer of public benefit and utility [1] because of the general abandonment for agricultural uses of the lands served thereby or [2] because the ditch has ceased to function and its restoration is not practical.” (Italics supplied.)
The second ground was asserted here.
Notwithstanding the statutory mandate to deny the petition for abandonment if the ditch serves “any useful purpose,” that phrase must be read with reference to the grounds which may be asserted for abandonment. Although this ditch may function to some extent, it is uncontroverted that it has ceased to function as it was designed to do. During the past 60 years, deterioration of the ditch and of conditions incident thereto, such as the culvert under the New Prairie Township road, has substantially changed the function and benefits of the ditch. If it is not practical to restore the ditch so that it functions as intended, it is unreasonable to base assessments for repair on benefits originally but no longer derived. It is not to be presumed that the legislature intends an unreasonable result.
Reversed.
Reference
- Full Case Name
- IN RE PETITION TO ABANDON COUNTY DITCH NO. 13, POPE COUNTY
- Status
- Published