John and Lauri Askew v. Trustees of Mule Slough Drainage District

IN THE COURT OF APPEALS OF IOWA

No. 19-0525
Filed February 5, 2020

JOHN and LAURI ASKEW, et al.,
Plaintiffs-Appellees,

vs.

TRUSTEES OF MULE SLOUGH DRAINAGE DISTRICT,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Fremont County, Kathleen Kilnoski,

Judge.

Defendant appeals the district court’s decision finding it had improperly

annexed land into the Mule Slough Drainage District. AFFIRMED.

Robert W. Goodwin of Goodwin Law Office, P.C., Ames, for appellant.

Matthew G. Woods of Woods, Wyatt & Tucker, PLLC, Glenwood, for

appellee.

Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.

Defendant Trustees of Mule Slough Drainage District (Trustees) appeal the

district court’s decision finding it had improperly annexed and reclassified land into

the Mule Slough Drainage District (Mule Slough DD). We find the district court

properly determined the trustees for the Missouri Valley Drainage District (Missouri

Valley DD) could appear as plaintiffs in this action. We affirm the district court

decision finding the Mule Slough DD did not properly annex the land in the Missouri

Valley DD. The Mule Slough DD did not follow the statutory procedures to

accomplish annexation, and it has not presented sufficient legal argument to show

why the statutory provisions should not be followed. Furthermore, without

annexation, the Mule Slough DD did not have authorization to reclassify the land

in question. We agree with the court’s conclusion that because there were errors

in the annexation proceedings, the annexation in whole must be vacated. We

affirm the decision of the district court.

I. Background Facts & Proceedings

The Mule Slough DD was created in 1904 by the board of supervisors of

Fremont County. See Monaghan v. Vanatta, 122 N.W. 610, 611 (Iowa 1909). It

consisted of approximately 13.7 square miles or 8811 acres. The West Benton

Drainage District (West Benton DD) was formed around 1910. It is to the west of

the Mule Slough DD and the west barrier of the West Benton DD is the Missouri

River. The West Benton DD consisted of about 5.6 square miles. The Missouri

Valley DD was established in 1923. See Payne v. Mo. Valley Drainage Dist. No.

1, 272 N.W. 618, 619 (Iowa 1937). It consists of about fifty-six square miles, or
 3

34,000 acres. The Missouri Valley DD is to the north and east of the Mule Slough

DD.

In 1924, the Missouri Valley DD constructed the Horse Creek Diversion

Ditch. The district court found, “About twenty-seven square miles of the Missouri

Valley district drain into the Horse Creek diversion ditch, cross into the Mule Slough

district, then leave Mule Slough to the Missouri River outlet.” The remainder of the

Missouri Valley DD drains south to the Nishnabotna River in Missouri.

In 2013, at the recommendation of the United States Army Corps of

Engineers, Mule Slough DD and West Benton DD installed pumping stations to

assist in draining water from the area. The total cost of the pumping stations was

$1,710,000. In 2017, the Mule Slough DD and the West Benton DD merged into

one drainage district called the Mule Slough DD.

Later in 2017, the Mule Slough DD began to take action to annex the portion

of the Missouri Valley DD that drained through the Mule Slough DD. Donald Etler,

an engineer for Bolton & Menk, Inc., prepared an annexation report, which stated,

“Much of the land area lying northeast of the Mule Slough district in the upper

Missouri Valley Drainage District did not originally drain to the Mule Slough open

ditch.” With the construction of the Horse Creek Diversion Ditch, water “was

diverted to the Mule Slough open ditch. This latter large better-drained area has

benefited by the Mule Slough facilities for 80 years, but the benefited lands’

boundary was not reviewed and revised as is now proposed.” Etler gave the

opinion that approximately 12,890 acres of the Missouri Valley DD were “materially

benefited” by the Mule Slough DD facilities, and he recommended the Mule Slough

DD “pursue the annexation of the several benefiting parcels described herein.”
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A Classification Commission report was also prepared, which included all

of the land proposed to be annexed and determined “the percentages of benefit

each parcel [of land] derives from the combined pumping station improvements.”

The report listed the landowners whose property benefited from the Mule Slough

DD and determined the amount each landowner should pay to assist in the costs

of the pumping stations.

The annexation report and classification report were approved by the Mule

Slough DD Trustees on April 19, 2017. On May 11, the Mule Slough DD gave

public notice it was seeking to annex land in the Missouri Valley DD. The notice

listed the specific parcels of land recommended for annexation. A separate public

notice on the same date listed the assessment amounts for the landowners in the

proposed annexation.

Objections to the annexation were considered at a public hearing on

May 31. The Trustees voted to accept the annexation. The issue of

reclassification was continued to June 29. At the June 29 meeting, objections were

considered. The Trustees then voted to accept reclassification of the annexed

property.

On July 7, twelve landowners whose property had been annexed by the

Mule Slough DD and the trustees of the Missouri Valley DD filed an action against

the Trustees, claiming the statutory provisions for annexation of property to a

drainage district had not been followed. On July 21, thirteen landowners1 plus the

trustees of the Missouri Valley DD filed an action against the Trustees, alleging the

1The plaintiffs in the second action were the same as the ones in the first action,
with the addition of one landowner.
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Mule Slough DD did not follow statutory provisions for reclassification of property.

The two matters were consolidated by the district court.

After the suit was filed, on February 12, 2018, the Trustees sent a letter to

affected landowners. The letter stated:

We are therefore asking each of you at this time (a) to approve and
consent to the installation of the pumps that occurred in 2013, and
(b) also, if you are a landowner in Missouri Valley Drainage District
No. 1, to approve and consent to the formal annexation on May 31,
2017 of lands in Missouri Valley Drainage District No. 1.

The letter provided that if a landowner did not respond, this would be considered

approval and consent to the Trustees’ actions. Landowners were given ten days

to object after receiving the letter. The Trustees state 84.4% of the landowners

did not object.

The district court ruled:

[The Trustees] failed to comply with the procedures set out in
Iowa Code section 468.356 [(2017)] for annexation and
reclassification of the Missouri Valley drainage district in 2017.
[The Trustees] failed to comply with the annexation procedures
set out in Iowa Code sections 468.119(1) or, alternatively,
468.119(2). [The Trustees’] reliance on theories of “retroactive
consent,” “constructive annexation,” or “self-annexation” lack a
legal basis. There is no persuasive evidence that the pumping
stations established in 2013 provide a material or special benefit
to plaintiffs’ lands or to the Missouri Valley drainage district.
Therefore, the annexation and reclassification must be set aside.

Plaintiffs filed a motion pursuant to Iowa Rule of Civil Procedure

1.904(2), claiming the court should set aside the annexation of all lands from

the Missouri Valley DD and the reclassification of those lands, whether or not

the landowners had been plaintiffs. The Trustees also filed a rule 1.904(2)

motion that asserted the lands in the Missouri Valley DD were being unjustly

enriched at the expense of the Mule Slough DD. The court determined the
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annexation and classification of all lands by the Mule Slough DD should be

vacated. The Trustees now appeal.

II. Standard of Review

Under section 468.91, this case was tried in equity. Our review in equity

cases is de novo. Iowa R. App. P. 6.907; Cook v. McNeal, 602 N.W.2d 353, 356

(Iowa 1999). “In equity cases, especially when considering the credibility of

witnesses, the court gives weight to the fact findings of the district court, but is not

bound by them.” Iowa R. App. P. 6.904(3)(g).

III. Plaintiffs

The Trustees claim the district court improperly permitted the trustees of the

Missouri Valley DD to be plaintiffs in this action, stating the trustees of the Missouri

Valley DD have no authority to determine the actions of the Mule Slough DD. They

also state the trustees of the Missouri Valley DD do not own any land that was

annexed by the Mule Slough DD.

“The powers and duties of the trustees are defined under Iowa Code section

468.526.” Sedore v. Bd. of Trs. of Streeby Drainage Dist. No. 1, 525 N.W.2d 432,

433 (Iowa Ct. App. 1994). Trustees of a drainage district “have control,

supervision, and management of the district for which they are elected.” Iowa

Code § 468.526. Section 468.120 provides, in part:

Those parties having an interest in the lands proposed to be annexed
have the right to receive notice, to make objections, to file claims for
damages, to have hearing, to take appeals and to do all other things
to the same extent and in the same manner as provided in the
establishment of an original district.

Additionally, “In all appeals or actions for or in behalf of the district, the board and

the drainage district it represents may sue as the plaintiffs.” Iowa Code § 468.90.
 7

The trustees of the Missouri Valley DD “have control, supervision, and

management” of the Missouri Valley DD, and this gives them an interest in the

Mule Slough DD’s proposed annexation of part of the land in the Missouri Valley

DD. See Iowa Code §§ 468.120, .526. As a party interested in the proposed

annexation, the Missouri Valley DD has the right to make objections and appeal

the annexation. See id. § 468.526. The trustees for the Missouri Valley DD may

file suit representing the drainage district. See id. § 468.90. We find the district

court properly determined the trustees for the Missouri Valley DD could appear as

plaintiffs in this action.

IV. Annexation

The Trustees claim the provisions of section 468.356 should not prevent it

from annexing the portion of the Missouri Valley DD that drains through the Horse

Creek Diversion Ditch and then through the Mule Slough DD. The Trustees claim

(1) a just and equitable solution would be to permit the Mule Slough DD to annex

the land that benefits from the Mule Slough DD; (2) the land they sought to annex

is receiving an unjust enrichment at the expense of the landowners in the Mule

Slough DD because they benefit from the pumping stations but are not required to

pay their fair share of the cost of the pumping stations; (3) the Missouri Valley DD

did not have the right to divert the natural flow of water by means of the Horse

Creek Drainage Ditch into the Mule Slough DD; (4) the Missouri Valley DD did not

have a prescriptive right to discharge water into the Mule Slough DD without cost;

(5) there was substantial compliance with the statute; and (6) a literal construction

of the statue would produce absurd, unjust, and inequitable results.
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Sections 468.356 to 468.383 apply to drainage districts with pumping

stations, such as Mule Slough DD. Section 468.356 provides,2 in part, “No

additional land shall be taken into any such drainage district after the

improvements therein have been substantially completed, unless one-third of the

owners of the land proposed to be annexed have petitioned therefor or consented

in writing thereto.”

Section 468.119 is titled, “Annexation of additional lands,” and provides:

1. After the establishment of a levee or drainage district, if the
board becomes convinced that additional lands contiguous to the
district, and without regard to county boundaries, are benefited by
the improvement or that the same are then receiving benefit or will
be benefited by a repair or improvement to said district as
contemplated in section 468.126, it may adopt, with or without a
petition from owners of the proposed annexed lands, a resolution of
necessity for the annexation of such additional land and appoint an
engineer with the qualifications provided in this subchapter, parts 1
through 5, to examine such additional lands, to make a survey and
plat thereof showing their relation, elevation, and condition of
drainage with reference to such established district, and to make and
file with the auditor a report as in this subchapter, parts 1 through 5,
provided for the original establishment of such district, said report to
specify the character of the benefits received.
2. In the event the additional lands are a part of an existing
drainage district, as an alternative procedure to that established by
subsection 1, the lands may be annexed in either of the following
methods:
a. (1) A petition, proposing that the lands be included in a
contiguous drainage district and signed by at least twenty percent of
the landowners of those lands to be annexed, shall be filed with the
governing board of each affected district.
(2) The board of the district in which the lands are
presently included may, at its next regular meeting or at a special
meeting called for that purpose, adopt a resolution approving and
consenting to the annexation.
b. Whenever the owners of all of the land proposed to be
annexed file a petition with the governing boards of the affected

2 Section 468.356 was amended effective July 1, 2019. See 2019 Iowa Acts ch.
59, § 162. The amendments were not in effect at the time the district court
considered the case and do not affect our discussion of the issues.
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districts, the consent of the board in which the lands are then located
shall not be required to consent to the annexation, and the board of
the annexing district may proceed as provided in this section.
3. If either method of annexation provided for in subsection 2
is completed, the board of the district to which the lands are to be
annexed may adopt a resolution of necessity for the annexation of
the additional lands, as provided in this section.
4. The right of remonstrance, as provided under section
468.28, does not apply to the owners of lands being involuntarily
annexed to an established district.

A. In considering the authority of drainage districts, we previously

stated:

A drainage district is established for a specific limited purpose and,
consequently, possesses its own particular characteristics. See
Reed v. Muscatine-Louisa Drainage Dist. No. 13, 263 N.W.2d 548,
551 (Iowa 1978); Miller v. Monona Cty., 229 Iowa 165, 169, 294 N.W.
308, 310 (1940). A drainage district has only those powers granted
it by the legislature. Reed, 263 N.W.2d at 551. Cases concerning
the legal status of drainage districts have consistently noted the
limited nature of their existence. Gard v. Little Sioux Intercounty
Drainage Dist., 521 N.W.2d 696, 698 (Iowa 1994). They have only
those powers as the statutes provide. Id.

Sedore, 525 N.W.2d at 433; see also Gannon v. Rumbaugh, 772 N.W.2d 258, 266

(Iowa Ct. App. 2009). In Cook, 602 N.W.2d at 356–57, the Iowa Supreme Court

rejected an argument that a drainage district board of trustees had implied

authority to reject the result of an election petition and concluded the trustees were

required to follow the language of the controlling statute.

In order for the Mule Slough DD to annex a portion of the Missouri Valley

DD, the Mule Slough DD was required to follow the statutory procedures in

sections 468.119 and 468.356. We reject Mule Slough DD’s claims that it should

be able to bypass the statutory requirements for annexation of land in another

drainage district based on theories of equity, unjust enrichment, the natural flow of

water, or prescriptive rights.
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B. The Trustees alternatively contend they substantially complied with

the statutory requirements in section 468.356 because they sent the landowners

letters seeking retroactive consent to the annexation. They state they sent out 205

letters and only thirty-two people objected to the annexation. Because the letter

stated the Trustees would consider a landowner had consented unless they

affirmatively objected and many failed to object, the Trustees state 84.4% of the

landowners consented to the annexation. Section 468.356 permits annexation if

“one-third of the owners of the land proposed to be annexed have petitioned

therefor or consented in writing thereto.”

The Trustees cite to Hicks v. Franklin County Auditor, 514 N.W.2d 431, 435

(Iowa 1994), which states,

When reviewing drainage proceedings of boards of supervisors we
have applied three principles: the drainage statutes shall be liberally
construed for the public benefit; strict compliance with statutory
provisions is required to establish a drainage district, while
substantial compliance is sufficient as to repairs or improvements;
and the procedural requirements should not be too technically
construed.

This case, however, does not involve repairs or improvements in a drainage

district, where substantial compliance with statutory provisions would be sufficient.

See Hicks, 514 N.W.2d at 436–37. Under section 468.119(1), a drainage district

is required to follow certain procedures “provided for the original establishment of

such district,” for the annexation of land. The statutory provision for annexation of

land by a drainage district “is clearly a legislative authorization to the board to re-

examine drainage district and other lands and to proceed to annex to a drainage

district such additional lands as should have been included in the district as
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originally established.” Roewe v. Pavik, 70 N.W.2d 845, 847 (1955). The Iowa

Supreme Court has stated:

The powers of the board of supervisors in respect to these matters
are contained in the provisions of the statutes pertaining to the
establishment of drainage districts, . . . and such statutes are strictly
construed, and the powers exercised by such board must be limited
to the express provisions found in the statute, and such additional
implied powers necessary to carry out those expressed.

Mitchell Cty. v. Odden, 259 N.W. 774, 780 (1935) (citation omitted).

We determine strict compliance, rather than substantial compliance, with

the statutory procedures is required for annexation of land by a drainage district.

See Hicks, 514 N.W.2d at 435. The Trustees did not strictly comply with the

requirements in section 468.356. The statute requires “one-third of the owners of

the land proposed to be annexed have petitioned therefor or consented in writing.”

Iowa Code § 468.356. There was no written consent by the landowners prior to

the Trustees’ vote to annex the land. In the retroactive request for consent, in

addition to the late timing of the request, by assuming the landowners consented

if they did not object, the Trustees did not obtain consent in writing from the

landowners, as contemplated by section 468.356.

The Trustees claim section 468.19 permits them to consider the lack of

objection to the annexation as consent to the annexation. This section provides:

Any person, company, or corporation failing to file any claim for
damages or objections to the establishment of the district at or before
the time fixed for said hearing, except claims for land required for
right-of-way, or for settling basins, shall be held to have waived all
objections and claims for damages.

Iowa Code § 468.19; Peterson v. Bd. of Trs. of Drainage Dist. No. 5, 625 N.W.2d

707, 710 (Iowa 2001). Under section 468.19, if a complaint is not made before the
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drainage district trustees it cannot be considered by the district court. Simpson v.

Bd. of Supervisors of Kossuth Cty., 162 N.W. 824, 827 (Iowa 1917). We conclude

the section applies to instances where there had been a lack of objection once

notice has been properly provided, not an original proceeding. See Naeve v.

Humboldt Cty. Drainage Dist. No. 126, No. 13-0929, 2014 WL 3931256, at *6 (Iowa

Ct. App. Aug. 13, 2014) (“It is not unreasonable to charge objecting landowners—

who had notice—with knowledge of the statutory procedures.”).

Furthermore, the Trustees did not meet the requirements of section

468.119. The Trustees did not follow section 468.119(1) because they did not

adopt a resolution of necessity. The minutes from the meeting to approve the

annexation do not show the Trustees made a finding that the lands proposed to be

annexed would be benefited from the annexation. The Trustees hired an engineer,

but the engineer’s report does not contain “a survey and plat thereof showing [the

additional land’s] relation, elevation, and condition of drainage with reference to

such established district.” See Iowa Code § 468.119(1).

Section 468.119(2)(a) requires a petition “signed by at least twenty percent

of the landowners of those lands to be annexed.” There is no claim this

requirement was fulfilled. Section 468.119(2)(b) applies when “the owners of all

of the land proposed to be annexed file a petition with the governing boards of the

affected districts.” There is also no claim this provision applies under the

circumstances of this case.
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We find the Trustees did not sufficiently comply with the requirements in

sections 468.119 and 468.356 for the annexation of land by a drainage district.3

C. The Trustees assert the provisions of sections 468.119 and 468.356

should not be applied because application of the statutes leads to absurd results.

“Under the absurdity doctrine, a court declines to follow the literal terms of the

statute to avoid absurd results.” Brakke v. Iowa Dep’t of Nat. Res., 897 N.W.2d

522, 534 (Iowa 2017). Regarding the absurdity doctrine, the Iowa Supreme Court

stated, “It can be utilized, in rare cases, to overcome the plain meaning of the

words of a statute. The doctrine, however, must be used sparingly and only in

circumstances when the court is confident the legislature did not intend the result

required by literal application of the statutory terms.” Id. at 540.

The statutory provisions concerning annexation of land by a drainage

district “is not the enactment of a useless or needless provision.” Farley Drainage

Dist. No. 7 v. Big Four Joint Drainage Dist., 221 N.W. 589, 591 (Iowa 1928). The

court stated:

When the Legislature of this state enacted the levee and drainage
district acts, it pursued a scheme for the installation of such
betterment, if the exercise of that jurisdiction “will be of public utility
or conducive to the public health, convenience, or welfare.” Quite
complete operating machinery is provided therefor. Within the
general plan is included the necessity of a petition, bond, etc.
Furthermore, the Legislature took the precaution of meeting, and
lending aid for, a situation where the board, after acting in the first
instance, “becomes convinced that additional lands are benefited by
the improvement and should have been included in the district as
originally established.” “Annexation of such additional land” is the
remedy afforded in that event.

3 Even on the ground of substantial compliance, we find the Trustees’ request for
retroactive consent did not substantially comply with section 468.356.
Furthermore, the Trustees did not substantially comply with the requirements in
section 468.119(1) and subsection (2) does not apply to the facts in this case.
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Id. (citations omitted).

We find application of sections 468.119 and 468.356 does not lead to

absurd results. The statutes do not prohibit the Mule Slough DD from annexing

additional land, but they set forth procedures for accomplishing this goal. The Mule

Slough DD did not follow the proper procedures to achieve the result they sought.

The legislature provided procedures for a drainage district to annex land, and it is

not an absurd result to state these procedures should be followed.

We affirm the district court decision finding there was no proper annexation

of the land in the Missouri Valley DD. The Mule Slough DD did not follow the

statutory procedures to accomplish annexation, and it has not presented sufficient

legal arguments to show why the statutory provisions should not be followed.

V. Classification Commission

The Trustees contend the district court should have approved the report of

the Classification Commission. Their arguments are based on the assertion the

court should have permitted the Mule Slough DD to annex the part of the Missouri

Valley DD it determined benefited from the pumping stations in the Mule Slough

DD. We have concluded the Mule Slough DD did not follow the statutory

procedures to properly annex the land. Without annexation, the Mule Slough DD

did not have authorization to reclassify the land in question. We affirm on this

issue.

VI. Scope of Relief

In ruling on plaintiffs’ rule 1.904(2) motion, the district court vacated the

annexation and reclassification of all of the land the Mule Slough DD voted to
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annex and reclassify. The Trustees claim the district court’s decision should apply

only to the plaintiffs and the court’s ruling should not apply to landowners who were

not parties to the case.

The district court relied upon section 468.97, which provides:

In any case where the decree has been entered setting aside the
establishment of a drainage district for errors in the proceedings, and
such decree becomes final, the board shall rescind its order
establishing the drainage district, assessing benefits, and levying the
tax based thereon, and shall also cancel any contract made for
construction work or material, and shall refund any and all
assessments paid.

The court stated, “Sections 468.119 and 468.120 contemplate that annexation

proceedings are treated similarly to drainage district establishment proceedings.”

We agree with the court’s conclusion that because there were errors in the

annexation proceedings, the annexation in whole must be vacated. See Iowa

Code § 468.97.

We affirm the decision of the district court.

AFFIRMED.