Monday, July 06, 2009

Modification and Lowering of Old Levees

Gannon v. Rumbaugh, no. 07-0889 (Iowa Ct. App. July 2, 2009).

Rumbaugh modified a levee on their land and either constructed a dam or put fill in a ditch which, it was alleged, caused flooding on the adjoining lands owned by Gannon and Steenhoek. The trial court found for the plaintiffs-in fact, adopting their proposed finding of facts and conclusions of law verbatim- and this appeal followed.

It was determined that a drainage district was established in the early 1900s that built levees in the area to prevent flooding from Clear Creek and Indian Creek. The drainage district was moribund, not having made assessments in seventy years or more. The Rumbaughs lowered the levee on their property in 2002 and made other alterations.

The Court of Appeals found that the trial court's finding of a nuisance was against the clear intent of Iowa Code ch. 654B, in that no request for mediation was ever made. The court thus dismissed the finding of a nuisance.

The court found that the Steenhoek's negligence claim for changes to the roadside ditch could stand, but denied the plaintiff's claim that the elimination of the old levee caused surface water to flow across their lands. The court further found that their was no evidence that the drainage district was now authorized by law since it had been abandoned many years ago.


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