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Trustees seek change in drainage district dispute

By Staff | May 24, 2015

jsutter@messengernews.net

Trustees of an independent drainage district say they still need a wider easement along a ditch, in spite of recently losing a lawsuit with Webster County.

“What we would hope is that the county would see fit to let Drainage District 96 determine a right of way,” said Trustee Dale Gerken.

The Webster County Board of Supervisors recently filed suit, and won, to prevent the district from establishing a tax exempt right of way extending 100 feet from each side of the center of the district’s nearly 16 miles of open ditch, or 200 feet in total.

The supervisors claimed the only land exempt from taxes should be the open ditch itself, about 66 feet, as in other districts in the county.

They also claimed the larger right of way was an attempt to avoid property taxes.

On May 5, District Judge Thomas Bice ruled in favor of the supervisors, saying the trustees didn’t complete the proper land survey in taking their action. Bice didn’t address the underlying question of how wide the right of way should be.

Gerken said without the right of way defined, contractors won’t know where they can work, and farmers don’t know where they can plant.

“I had a neighbor who lost his crop two years in a row, because we had to tear up the ditch. That’s $400-500 an acre,” Gerken said.

Trustee Tom Laufersweiler said the trustees didn’t care about the tax exemption; they just need the land so there’s room to work on the ditch.

“We have to have a right of way. We can’t operate without a right of way,” Laufersweiler said. “If it’s not recorded, you don’t have a right of way, you can’t be on that man’s property. If you say the right of way is only the banks, how do you get on that land?”

All the other drainage districts in the county do operate with only the ditch as the right of way, said Webster County Drainage Clerk Doreen Pliner.

Iowa Code allows contractors to work as far from the ditch as is necessary to complete their work, Pliner said.

“We try to do cleanouts in the spring and fall when there’s no crop out there,” Pliner said.

If the work does damage crops, the farmers can file to be paid for the damages, she said.

Within a right of way, farmers can still grow crops, but if they’re destroyed the district doesn’t pay for it.

The code also allows “the right of ingress and egress for repairs that are necessary,” Pliner said.

Tax exempt area

The tax exempt land is land that has been purchased by the district, according to Doug Struyk, an attorney with the Iowa Drainage District Association. That can be different from the land which the district has the right to use.

Struyk was not asked about the DD 96 case, but spoke generally about drainage in Iowa.

“If (a drainage district) is coming in to work on the property, if the land has been condemned, and the drainage district owns it – so the drainage district has paid for that land – then it is treated differently than land they just have a right of way to go in and work on,” he said.

When a drainage district is created a right of way is automatically granted for ingress and egress to repair, expand, or otherwise work on the district, he said.

There’s nothing in Iowa code that sets the width of a right of way, he said.

Struyk said the terms “right of way” and “easement” are often used interchangeably, but not all easements are the same.

Other counties

Laufersweiler told the supervisors other counties he’s visited have a larger easement, like what DD 96 was seeking.

While DD 96 sought a 200 foot right of way, some counties surrounding Webster commonly use 100 foot easements, and there appears to be some variety in how counties establish their easements.

Wright County typically goes with a 100 foot easement, 50 feet on either side of the asset, said Drainage Clerk Deb Lukes.

So does Hamilton County, according to Assistant Assessor Lindsey Wille.

Calhoun County does the same, said Drainage Attorney Dave Wollenzien.

“That’s 50 feet on each side of the center line,” Wollenzien said. “If we do not have a 50 foot right of way on either side, we’ll try to acquire a right of way. That’s our standard. We try not to work outside the right of way.”

No plans to appeal

Supervisor Mark Campbell said he will address Laufersweiler’s question. He plans to visit the neighboring counties and discuss the outcome of the lawsuit.

At the hearing, Bice speculated that the case might be deserving of review down in Des Moines. But Gerken said the trustees were unlikely to appeal the case.

“That’s too expensive,” Gerken said. “We’re not going to appeal, but we’re thinking about starting over from scratch.”

“It’s easier to start over. Whatever the judge told us we did wrong, we’ll correct it this time,” said Laufersweiler.

Nothing is decided for certain yet, as the trustees are still talking with the landowners and their attorney.

Width can vary

In Pocahontas County, the right of way typically includes more land than just the open ditch, but not enough land to do a full cleanout, according to an engineer who regularly works there.

“Over past 50 years in Pocahontas County, the right of way has been acquired or adjusted so that there is approximately 25 feet of land on each side of the ditch for access and maintenance,” said Don Etler, of Bolton and Menk Engineering, Spencer. “The right of way includes the open ditch plus 40 to 50 feet total.”

This would lead to a 100 to 110 foot right of way for a ditch 60 feet wide.

Farmers are allowed to farm land in the right of way or use it for other purposes as long as they don’t obstruct the drainage district, Etler said.

But when the district needs to enter that land to access the ditch, if they knock down crops they don’t have to pay the damages, he said.

And larger cleanouts require more space than that 25 reserved feet.

“Most every drainage ditch requires periodic restoration and repair, which requires maybe 100 feet on each side of the ditch for work area,” he said. “That area is temporarily rented, used by the district, the district will pay damages.”

“That’s been my general experience with counties,” Etler added.

John Milligan, of MHF Engineering, has done extensive drainage work in Webster County, but also works in Hamilton, Greene, Carroll, Dallas, Story and Boone counties. He said in his experience, it’s often only the ditch itself that is exempted from taxes.

“It’s important to note for tax purposes, the only part that is taken out is the part that cannot be farmed,” Milligan said.

A large cleanout only happens every 30 to 50 years, Milligan said, and when that happens the contractors can work in the area surrounding the ditch, even though taxes are still paid on those lands.

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