State Ex Rel. Minnesota Department of Natural Resources v. Kandiyohi County Ex Rel. Board of Commissioners

YETKA, Justice.

A petition was filed for repair of drainage ditch No. 9 situated in Kandiyohi County, Minnesota. The county board authorized the repair of the drainage ditch, and the state appealed the order to the district court and also commenced injunctive proceedings under the Minnesota Environmental Rights Act. The trial court denied the injunction and affirmed the county board’s order for the repair of drainage ditch No. 9. We reverse and remand.

The land involved in this appeal is a shallow basin in Kandiyohi County lying generally east of Green Lake and south of Lake Calhoun. County Ditch No. 9 was established and constructed between 1890 and 1901. It runs east through this basin, but has never been adequate to drain it completely. As a result, the basin has always drained north towards Lake Calhoun. In about 1906, County Ditch No. 20 was built to drain Green Lake and Lake Calhoun. Ditch No. 20 runs between Lake Calhoun and the shallow basin (see the site map at Appendix I). After Ditch No. 20 was completed, the soil in the basin became dry enough to be used for pasture and growing crops.

In 1936, the State of Minnesota built two dams in Ditch No. 20. The dams were intended to restore a marshy area between Green Lake and Lake Calhoun in the furtherance of a fish propagation program. The state at that time acquired fee or easement interests in the land thought to be affected by this program. However, the dams interfered with the drainage of the shallow basin south of Ditch No. 20. This interference caused portions of the basin to be flooded in the spring and summer months. Therefore, some property owners brought proceedings for writs of mandamus directing the state to institute eminent domain proceedings for condemnation of their property. (Such proceedings are commonly referred to as “inverse condemnation” proceedings.) In Nelson v. Wilson, 239 Minn. 164, 58 N.W.2d 330 (1953), this court found that the dams had caused the flooding and ordered the state to condemn the affected land. The state began condemnation proceedings on 15 parcels. After the commissioner’s award, all proceedings were appealed to the district court. The appeals were settled before trial, the state acquiring fee simple interests in three parcels and “flowage easements” on the remaining 12. The easements acknowledge that the state had operated dams in Ditch No. 20 so as to “collect and cast flood waters upon the (grantor’s) land,” and *268granted to the state the right to maintain the dams at established elevations. The three parcels that were purchased in fee simple became part of a wildlife management area.

On February 3, 1960, the landowners in this case, or their predecessors in title, petitioned the Kandiyohi County Board for repair of Ditch No. 9. The landowners wanted to drain off water that collected on their land because of the dams in Ditch No. 20. The board appointed an engineer who recommended widening the ditch, deepening it up to 1 foot below its original depth, and removing some trees. The state appeared at a hearing on this recommendation and objected on the grounds that (1) 200 acres of state land would be damaged by the proposed repair and (2) the state had acquired flowage easements over some of petitioners’ land by which those petitioners had “granted away their rights to have said property drained.”

The board ordered that repair of Ditch No. 9 proceed essentially in accordance with the engineer’s recommendation. On September 27, 1961, the state appealed the board’s decision to the district court. The court dismissed the board’s order on July 11, 1962, under three alternative holdings: (1) the proposed work was an improvement and not a repair, (2) the board failed to determine whether the widening and tree removal would require the taking of property not included when the ditch was established, and (3) the cost of repair exceeded the original benefits. There was no appeal of the district court’s decision.

In the late 1970’s, the landowners again petitioned for the repair of Ditch No. 9. The Board of County Commissioners held a hearing on the petition and appointed an engineer to prepare repair plans. The plans called for deepening the ditch approximately 1 foot below the depth of original construction. The Minnesota DNR participated in the hearing and objected to the repair. Nevertheless, the board granted the petition and ordered the ditch repaired according to the engineer’s plans.

The state petitioned the district court for review of the board’s determination pursuant to Minn.Stat. § 106.631 and sought to enjoin the repairs pursuant to the Minnesota Environmental Rights Act. The actions were apparently consolidated. At the outset of the trial, three factual issues were presented: the elevation of the ditch as originally designed, the elevation as originally constructed, and the impact on the environment resulting from the proposed repairs. Prior to trial, the court requested that engineers for both sides collect additional data in the field. As a result of this joint survey, the parties were able to agree on the original design depth, and the board’s engineer revised his proposed repair depths, raising them by as much as 0.7 feet. However, the parties could not agree on a depth “as constructed” and that issue was tried.

After the trial, the court issued its findings of fact and conclusions of law. Its findings can best be understood by reference to the site map attached as Appendix II. The relevant findings are:

1. The design depth at the “section corner” was 1155.8 (presumably measured in feet above mean sea level).
2. The constructed depth at this point was 1155.9, 0.1 foot shallower than designed.
3. The design depth at the “shallow ridge” was 1155.0.
4. The constructed depth at this point was 1155.4, 0.4 feet shallower than designed.
5. The proposed repair would reduce water levels in the area by 0.4 feet, affecting 230 acres of area wetland. Portions of the area would be changed from Type 3 wetlands to Type 2 wetlands.

The court did not make any findings of fact or conclusions of law concerning the extent of the “flowage easements.” On the basis of these findings, the court modified and affirmed the board’s repair order, permitting “repair” of Ditch No. 9 to its orginally designed depth:

*269The threshold question in this appeal is whether the requested work would be an improvement or, as the trial court found, a repair of the ditch. Since we have determined that the work would be an improvement, the other issues raised in this case need not be discussed, although the state makes a strong argument that, on the basis of estoppel, prescription, or the flowage rights acquired by the state, the petition should be denied.

There are three separate proceedings applying to drainage of wetlands, all covered in Chapter 106 of Minnesota Statutes 1982. The first proceeding deals with the initial construction or establishment of a drainage ditch. The second deals with the improvement of an established ditch, and the third provides for the repair of established ditches.

The procedure for establishing a new ditch begins with the filing of a petition:

Before any public drainage system or other improvement authorized by sections 106.011 to 106.661 is established, a petition therefor shall be filed with the county auditor * * ⅜. Such petition shall be signed by not less than a majority of the resident owners of the land described in the petition or by the owners of at least 60 percent of the area of such land, exclusive of the holder of easements for electric or telephone transmission and distribution lines. * * * The petition shall state that the petitioners will pay all costs and expenses which may be incurred in case the proceedings are dismissed or for any reason no contract for the construction thereof it let.

Minn.Stat. § 106.031, subd. 1 (1982). The county board then appoints an engineer to make a preliminary survey to determine whether the proposed ditch is necessary and practical. Minn.Stat. §§ 106.071, .081 (1982). The engineer’s preliminary report is considered at a public hearing. Minn. Stat. § 106.101 (1982). If it appears that the ditch is necessary and feasible and that it will promote the public health, the board orders a detailed survey and appoints viewers to assess the benefits and damages to affected landowners. Minn.Stat. § 106.-101, .141, subd. 1 (1982). In the survey:

All ditch lines shall be surveyed in 100 foot stations and levels shall be based on standard sea level datum if practical. Bench marks shall be established upon permanent objects along the line of the drains, not more than a mile apart. All field notes made by the engineer shall be entered in bound field books and preserved by him.

Minn.Stat. § 106.121, subd. 3 (1982). The statute continues:

In planning a public drainage system, the engineer may vary from the line and plan described in the petition as finally adopted by the board * ⅜ * at the preliminary hearing or from the starting point thereof, as he finds necessary for the proper drainage of the land likely to be assessed for the drainage system described in the petition and approved at the preliminary hearing. He shall have authority to survey and recommend the location of such branch ditch or ditches as may be found necessary. Where better results will be accomplished and more desirable outlets secured, the engineer may provide for the extension of the outlet, or he may provide for different parts of the drainage to flow in different directions with more than one outlet. It shall not be necessary for such ditches to connect if they accomplish the drainage of the area to be affected by the petition instituting the proceedings.

Id., subd. 6. When the engineer and viewers have filed their final reports, another public hearing is conducted. If the reports are satisfactory, the ditch is established by an order of the board. Minn.Stat. §§ 106.-171, .191, .201 (1982).

The procedure for improving an established ditch also begins with the filing of a petition:

[A] petition signed by not less than 26 percent of the resident owners of the property affected by the proposed improvement or over which the proposed improvement passes or by the owners of not less than 26 percent of the area of *270the property affected by the proposed improvement or over which the proposed improvement passes shall be filed with the auditor.

Minn.Stat. § 106.501, subd. 1 (1982). Petitioners for an improvement must file a bond payable to the county in the event the improvement is not constructed. Id., subd. 2. The statute governing improvements then adopts most of the procedures for establishing a ditch, including a preliminary survey and hearing, detailed survey, appointment of viewers, and final hearing. Id.

The procedure for repairing a ditch is much less involved than either the procedure for establishing a ditch or the procedure for improving one. The petition may be filed by a single party, and no bond is required. Only one engineer’s inspection is required and only one public hearing. Minn.Stat. § 106.471, subd. 4 (1982).

Two sections of the “repair” statute are relevant to this appeal:

The term “repair” as used in this section means restoring all or a part of a ditch system as nearly as practicable to the same condition as when originally constructed or subsequently improved, including resloping of open ditches and leveling of waste banks if deemed essential to prevent further deterioration, and routine operations as may be required from time to time to remove obstructions and preserve the efficiency of the ditch.
⅜ ⅝ ⅜. ⅜ j}s ⅜
* * * After the construction of a drainage system has been completed, the ditch authority shall maintain the same or such part thereof as lies within its jurisdiction and provide the repairs required to render it efficient to answer its purpose. The drainage authority shall cause such drainage system to be annually inspected, either by a committee thereof, or a ditch inspector appointed by the ditch authority, and, if the committee or inspector shall report in writing to the drainage authority that repairs are necessary on any ditch system and such report is approved by the drainage authority, it shall cause such repairs to be made within the limits hereinafter set forth. The ditch inspector may be the county highway engineer.

Minn.Stat. § 106.471, subds. 1-2 (1982). Under the clear language of the statute, the work requested could not be a repair since it calls for digging a deeper ditch than was “originally constructed.” The trial court held, however, that since the requested work would merely bring the ditch up to the specifications of the original plan, it constituted a repair.

The trial court relied on the case of Taylor v. County of Sherburne, 243 Minn. 303, 67 N.W.2d 827 (1954). In that case, Floyd Taylor and others petitioned the county board for the repair of a ditch under the repair provisions of the Drainage Act. The board ordered repairs that included lengthening and deepening the ditch. The ditch had not been originally constructed according to the engineer’s plans; the new work placed the ditch in the exact condition called for in those plans.

Taylor was dissatisfied with the repairs and obstructed the ditch. The county brought an action to enjoin him from placing further obstructions. He defended on the grounds that the board was without jurisdiction to do the work it had done on the ditch because (1) the work was an “improvement” instead of a repair and (2) the cost of the repairs exceeded the amount permitted under the repair statute. The trial court granted the injunction and Taylor appealed. This court affirmed the trial court, holding that Taylor was estopped from challenging the board’s jurisdiction and that the work was a “repair,” not an “improvement.”

The Taylor holding is, however, based on unsound reasoning. The court relied on two older cases to support its decision, County of Brown v. Martinsen, 153 Minn. 268, 190 N.W. 255 (1922), and State ex rel. Kolars v. County Board of Polk County, 151 Minn. 274, 186 N.W. 709 (1922). Those two cases were decided under a statute that defined repairs much differently than *271the present statute. The present statute limits “repairs” to the extent of original construction. The former statute had a much broader definition:

The repairs herein provided for shall be construed to include the taking from said ditch of sediment deposited therein, the removal of obstructions therein, the widening and deepening thereof so as to answer its original purpose or so as to provide for additional flow of waters caused by other ditches or any other reason, the cutting and removal of weeds or grass from the bottom, sides, banks, or right of way of such ditch and such other changes or alteration therein as will enhance its usefulness for the purpose of drainage, and shall further be construed to include the extension of said ditch to a new outlet when and in case the same is found by the county board to be necessary or advisable.

MinmStat. § 5552 (1913) (emphasis added).

The court in Taylor stated that the former definition of repair was “similar” to the present definition. 243 Minn, at 307, 67 N.W.2d at 830. This is plainly wrong: the former definition was based on original purpose while the present is based on original construction. The former definition was much more liberal. Since Taylor is based on a misinterpretation of authorities, it cannot support the trial court’s decision in this case and is expressly overruled.

The changed definition of repair from the old statute to the present statute indicates a legislative intention to restrict the scope of “repairs.” This intention should be honored by adopting a literal interpretation of the statute and limiting “repair” work to the extent of original construction. This court has indicated its acceptance of a literal interpretation on two separate occasions. In Seidlitz v. County of Faribault, 237 Minn. 358, 55 N.W.2d 308 (1952), the court stated:

In a proceeding for repair, under § 106.-471, the principal objective is to clean out and restore the drainage system to its original condition. Subd. 1(a) of that section defines the word “repair” as meaning “restoring a ditch system or any part thereof as nearly as practicable to the same condition as when originally constructed * * ⅜.”

Id. at 363, 55 N.W.2d at 312 (emphasis in original). In Johnson v. County of Steele, 240 Minn. 154, 60 N.W.2d 32 (1953), the court made a similar statement:

There is a fundamental difference between a “repair” proceeding and an “improvement” proceeding both substantively and proeedurally. Substantively, a “repair” proceeding contemplates only the restoration of the ditch to its original condition without in any manner changing or altering its channel.

Id. at 158, 60 N.W.2d at 36. Taylor failed to consider either of these cases.

The work petitioned for in this case exceeds the original construction so it is an improvement, not a repair. The county board’s order for repair should be vacated because it does not comply with the statutory requirements for improving a ditch, Minn.Stat. § 106.501 (1982).

Reversed and remanded.

*272APPENDIX I

*273APPENDIX II