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IN THE COURT OF APPEALS OF IOWA No. 8-479 / 07-1921 Filed December 17, 2008

RAY W. OHRTMAN REVOCABLE TRUST, et al., Plaintiffs-Appellants, vs. PALO ALTO COUNTY BOARD OF SUPERVISORS, et al., Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Palo Alto County, Patrick M. Carr, Judge.

Appellants appeal from a decision to annex their land in order to make it part of a different drainage district. REVERSED.

Robert Goodwin of Goodwin Law Office, Ames, for appellants. James Hudson of Hudson Law Firm, Pocahontas, for appellees.

Heard by Vogel, P.J., and Miller, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).

2 VOGEL, P.J. The district court approved the Palo Alto County Board of Supervisors ' ("the Board") decision to annex approximately 45,000 acres of land in order to make it a part of Drainage District 80. The plaintiffs, Ray W. Ohrtman Revocable Trust, and others, also known as the Upper Cylinder Creek Watershed landowners, appeal the land annexation decision, arguing that the improvements and facilities of Drainage District 80 provide no material benefit to their land. We agree and reverse. I. Background In order to make the farmland of Palo Alto County productive, artificial drainage districts have been created. Drainage District 80, created in 1916, is a watershed located in the eastern part of the county, and includes approximately 12,000 acres of land. The neighboring land is comprised of different watersheds, and Drainage District 80 claims to receive drainage from approximately 45,000 1 acres of these surrounding lands through open ditches and tiles. The Board is seeking to annex these lands to make them a part of Drainage District 80. The Cylinder Creek plaintiffs include 131 landowners with approximately 18,000 acres of land located in the watershed of Upper Cylinder Creek, bordering Drainage District 80 to the north and east. The northern portion of the watershed measures approximately ten miles east to west, and the southern portion approximately one mile. The area is made tillable by several private drainage districts which drain into Cylinder Creek. The Creek accepts and restricts the

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Of the 45,000 acres to be annexed, 27,000 lie to the north and west and are not part of this lawsuit. Only the benefit to the 18,000 acres of the Upper Cylinder Creek Watershed is in dispute, and brought by the Plaintiffs to this action.

3 flow of water downstream as it meanders for two and one-half miles through designated wetlands and grass buffer strips. Cylinder Creek eventually connects to Drainage District 80 at "Lateral Z," at the southern-most point of the Upper Cylinder Creek watershed. Lateral Z also accepts drainage from the expansive lands to the north and west, approximately 12,000 acres already in Drainage District 80 and 27,000 additional acres to be annexed that drain into the " upper main open ditch." This confluence of water at Lateral Z then continues to flow south and east four miles through the 1916 straightened Cylinder Creek, now known as the "lower main open ditch," and on another seven miles to the outlet of the Des Moines River. Cylinder Creek landowners object to the annexation as they maintain nothing proposed by the Board's engineer will benefit the drainage of their lands. In 2003, the Board appointed the engineering firm of Kuehl & Payer, Ltd. to report on concerns of Drainage District 80. Engineer Donald Etler surveyed the land and recommended an extensive cleanout, regrading and repair of an area not affected by this litigation, the "upper main open ditch," mentioned above. He also proposed new construction south of Drainage District 80, for flood control purposes affecting lands between the lower main open ditch and the outlet of the Des Moines River. With this later proposal, he noted the possible annexation of additional lands, including the Upper Cylinder Creek Watershed area. Following a hearing in 2005, the Board approved Etler's 2003 and 2005 reports recommending annexation of the additional lands to Drainage District 80. The Upper Cylinder Creek Watershed landowners appealed this decision to the district court. They retained two engineers, Michael J. Ryan and Gary E.

4 Sindelar, to review Etler's reports and recommendations. Both engineers

maintained that the proposed annexation would not provide a benefit to the landowners in the Upper Cylinder Creek Watershed. After a bench trial, the district court affirmed the Board's decision by finding the plaintiffs' lands: (1) are benefited by the 1916 "improved outlet brought closer," and (2) will be benefited by any "future cleanout of Lateral Z and the lower main open ditch," resulting from increased water flow. The plaintiff landowners appeal. II. Standard of Review This lawsuit was filed and tried in equity; therefore we review de novo. Iowa R. App. P. 6.4; Commercial Sav. Bank v. Hawkeye Fed. Sav. Bank, 592 N.W.2d 321, 326 (Iowa 1999). We examine the entire record and adjudicate anew rights on issues properly before us. Commercial Sav. Bank, 592 N.W.2d at 326. In doing so, we give weight to the trial court 's factual findings, especially when considering the credibility of witnesses, although we are not bound by them. Iowa R. App. P. 14(f)(7). 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. Hicks v. Franklin County Auditor, 514 N.W.2d 431, 435 (Iowa 1994). III. Material Benefit to Upper Cylinder Creek Watershed Landowners Under the Iowa Code, after the establishment of a drainage district, if a board is convinced additional lands contiguous to the district are benefited by the improvement, it may adopt a resolution of necessity for the annexation of such

5 additional land. Iowa Code

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