Schwarzkopf v. Sac County Board of Supervisors

341 N.W.2d 1, 1983 Iowa Sup. LEXIS 1720
CourtSupreme Court of Iowa
DecidedNovember 23, 1983
Docket68740
StatusPublished
Cited by28 cases

This text of 341 N.W.2d 1 (Schwarzkopf v. Sac County Board of Supervisors) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schwarzkopf v. Sac County Board of Supervisors, 341 N.W.2d 1, 1983 Iowa Sup. LEXIS 1720 (iowa 1983).

Opinions

LARSON, Justice.

A group of local residents formed a rural water district in Sac, Carroll and Crawford Counties for the purpose of pumping and distributing water to its members. See Iowa Code ch. 357A (1977). This local system was known as the West Central Iowa Rural Water Association, a nonprofit corporation. A permit to withdraw water was granted to the Association by the Natural Resources Council over the objection of some of the residents of the area, including these plaintiffs. No judicial review was sought by the objectors. To facilitate construction of the pipeline, the Sac County board of supervisors granted certain easements to the association. After a series of district court hearings and two appeals in the Iowa Court of Appeals, the district court held in the most recent action that a curative act claimed to grant authority for the easements is unconstitutional. We reverse and remand.

The local association obtained easements from private landowners for the construction of most of the pipeline in areas adjacent to the roadways. In those instances when it was necessary to cross the road with the pipeline, or when the association was unable to obtain private easements, however, it sought easements on road rights-of-way. The easements were granted by the Sac county board in 1976, and the line was constructed as planned. Approximately six of the 176 miles of pipeline in the system were installed on the rights-of-way in Sac County. (The other two counties also granted easements for use of county roads, apparently without objection).

These plaintiffs attacked the easements on the ground the board lacked statutory authority to grant them. The local water association, joined by the intervenor State Association of Iowa Rural Water Systems, Inc. (now known as Iowa Rural Water Association), countered that the board had authority to grant the easements by reason of a statutory amendment and a curative act by the legislature. (We will refer to the parties aligned on the side of the original defendants as “the association.”) It appears to be undisputed that the pipeline system cannot be effectively used if the local water system is denied the right to pipe water across the county rights-of-way in Sac County. The association and inter-venor argue in effect that the plaintiffs, who failed to prevent issuance of the permit to withdraw water, are merely using this suit as a spigot to shut off the whole system.

I. The Standing Issue.

The association contends that the plaintiffs lack standing to challenge the [3]*3constitutionality of the curative act in question. The plaintiffs’ standing, however, was not challenged until after passage of the curative act, which was after both court of appeals decisions had been rendered and which followed the filing of the petition by over four years. The objection to standing now raised by the association is based on the principle that a private citizen cannot enforce a public right, Viet Nam Veterans Against the War of Veterans’ Memorial Auditorium Commission, 211 N.W.2d 333, 335 (Iowa 1973). While this might have had merit if timely asserted, the association has waived this objection by failure to raise it in a timely manner. See Cole v. City of Osceola, 179 N.W.2d 524, 527-28 (Iowa 1970); cf. In re Marriage of Stutzman, 311 N.W.2d 73, 74 (Iowa 1981).

II. The Statute.

In 1976, when the board of supervisors granted this easement, it relied upon the language of Iowa Code section 320.4 which then provided:

The state department of transportation in case of primary roads, and the board of supervisors in case of secondary roads, on written application designating the particular highway and part thereof, the use of which is desired, may grant permission:
1. To lay gas and water mains in highways outside cities to local municipal distributing plants or companies, but not to pipe-line companies. This section shall not apply to or include the pipe-line companies required to obtain a license from the Iowa state commerce commission.

(Emphasis added.)

III. The Procedural History.

The procedural history of this case is long and complex. The plaintiffs’ petition for declaratory judgment, challenging the board’s granting of the easements, was filed in 1977. The association answered, asserting that the board had authority under section 320.4 to grant the easements and if it was held that section 320.4 precluded granting of the easement, it was unconstitutional. Both sides filed motions for summary judgment to determine the board’s authority under section 320.4.

The trial court concluded that a proposed grantee was qualified to obtain a county easement under section 320.4 if it was either (1) a “municipal distributing plant” or (2) a “company ... [other than a] pipeline company.” It ruled in favor of the defendants on both counts, sustaining their motion for summary judgment and denying the plaintiffs’ motion.

On appeal, the court of appeals reversed on the ground the pipeline company was not a “municipal” entity. It did not discuss the alternative ground of authority relied on by the district court that the pipeline company was a “company ... other than a pipeline company.” Following remand, and in response to a motion by the plaintiffs seeking an “order in conformity with the court of appeals decision,” the district court traced the history of the proceedings to that point. It noted that the procedendo following the court of appeals decision had directed it to “proceed in the manner required by law consistent with the opinion of the court of appeals.” It then stated:

This is where the matter now stands[:] In accordance with the Procedendo, it is ordered by this Court for further proceedings, but such proceedings must be consistent with the appellate court’s opinion. To be consistent with its opinion for certain, the Summary Judgment entered is set-aside; and further, it must be and is the law of this case that the Defendant water association is not entitled to a permit from the Board of Supervisors on the gounds [sic] that it is a quasi municipal corporation.

A “number of unanswered questions” remaining after the appeal, it ruled, would have to await future rulings.

On October 22, 1979, the plaintiffs renewed their summary judgment motion which had been filed in 1977, and the association filed a motion to adjudicate law points. The plaintiffs’ summary judgment [4]*4motion was overruled. The court again related the history of the proceedings and the effect of the court of appeals' decision, concluding that the court of appeals had adjudicated only the propriety of the summary judgment for the association and left unanswered several other issues. At the same time, it ordered the association’s application for adjudication of law points be “held in abeyance until this case is submitted on the merits,” which occurred in a few months. In the later ruling, the court held the association was entitled to obtain an easement because it was not a “pipeline company” under the statute.

A second appeal followed.

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Cite This Page — Counsel Stack

Bluebook (online)
341 N.W.2d 1, 1983 Iowa Sup. LEXIS 1720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwarzkopf-v-sac-county-board-of-supervisors-iowa-1983.