Wingen v. Blue Earth County

415 N.W.2d 394, 1987 Minn. App. LEXIS 5027
CourtCourt of Appeals of Minnesota
DecidedNovember 24, 1987
DocketNo. C5-87-910
StatusPublished

This text of 415 N.W.2d 394 (Wingen v. Blue Earth County) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wingen v. Blue Earth County, 415 N.W.2d 394, 1987 Minn. App. LEXIS 5027 (Mich. Ct. App. 1987).

Opinion

OPINION

HUSPENI, Judge.

Appellant, Alonzo Wingen, brought suit against respondent Blue Earth County seeking $3,705 in compensatory damages and injunctive relief ordering respondent to repair damage to appellant’s property caused by the construction of a ditch through his property. The court denied injunctive relief and awarded appellant [395]*395only $105 in damages. Though he does not necessarily challenge the trial court’s findings, appellant does object to the conclusions drawn from those findings. We affirm.

FACTS

Appellant is the owner of the Northwest Quarter of the Northeast Quarter and the Northeast Quarter of the Northeast Quarter, section 33, Township 106 North, Range 25 West, Blue Earth County, Minnesota. Old County Ditch No. 5 ran diagonally through his property from southwest to northeast and exited the property through a large box culvert running under the highway abutting the eastern border of the property. The drainage of appellant’s land into this ditch consisted mainly of run-off from other parts of his property. In addition, overflow from a pond in the southwest portion of the property ran into the old ditch. Appellant had tile draining part of his property. This tile originated on neighboring property. It is unclear from the testimony exactly where the tile runs, but it appears to run into appellant’s pond and not directly into the old ditch. The water from the tile would run into the old ditch as part of the overflow from the pond.

In 1979, appellant, together with neighboring property owners, petitioned respondent for the improvement of County Ditch No. 5. Viewers assessed benefits and damages to lands through which the ditch ran and the Blue Earth County Board confirmed the assessments. Appellant appealed the Board’s action to the district court. The case was settled by stipulation between the parties, and the stipulation formed the basis for judgment entered April 29, 1982.

The stipulated judgment provided that if the appellant did not sell his land to the Department of Natural Resources, as was contemplated at the time, he could exercise one of two options. Under paragraph 2(a) of the stipulation, appellant could pay $8,000 to the county and be included in the ditch system. Under paragraph 2(b), he could choose not to pay the assessment and give up his right to obtain any drainage into the newly constructed ditch. It was further stipulated, in paragraph 3, that in constructing the ditch across the appellant’s property, the contractors would (1) place the dirt excavated from the newly constructed ditch on the north side of the ditch, (2) create a driveway from the county road on the east side of the appellant’s property to the dike to be constructed so that the appellant could drive on the dike, and (3) not interfere with the existing drainage under the bridge abutting appellant’s property on County-State Road No. 14. The dirt was to be piled on the north side of the ditch to prevent water from the property to the south of the appellant’s from flooding appellant’s land.

The newly constructed County Ditch No. 5 enters appellant’s property along the lines of the old ditch but then makes a 90 degree turn to the right and runs to the eastern boundary of appellant’s property. In accordance with the stipulation, dirt removed from the new ditch was piled on the north side of the ditch to create a dike. (The $105 damages award to appellant was based upon the court’s finding that some of the dirt had been piled on the south side of the ditch in violation of the agreement. Appellant had expended $105 to level out this dirt.)

There is a berm between the dike and the ditch. The construction contract called for the berm to be two feet wide. According to the measurements of Richard Bradshaw, the engineer who oversaw the construction of the ditch, the average width of the dike and berm combined is ten feet. There is no dike on the south side of the ditch. Appellant claims that the dike is too wide and takes up more property than was originally contemplated. He sought an order from the court compelling respondent to move the entire dike closer to the ditch.

Originally, the construction plans called for the new ditch to follow the lines of the old ditch all the way through appellant’s property. Fearing that this would cause a pond on his property to be drained, appellant requested that the county modify the construction plans to curve the ditch and [396]*396run it west to east through the southern portion of his property. Bradshaw agreed to this change and restaked the lines of the new ditch. A pilot ditch was dug along the lines as restaked by Bradshaw. However, after the pilot ditch was dug, Bradshaw realized that the ditch would sever access to the northwest corner of the property directly to the south of appellant’s property. In order to avoid this, Bradshaw res-taked the ditch, moving it back toward the line of the old ditch. The new ditch was finally constructed as restaked by Bradshaw. However, in the area where the pilot ditch was dug, what has been referred to alternately as a shelf, a double ditch or a ledge was left. The area through which the shelf ran consisted mainly of untillable marsh.

Both parties agreed that under the terms of the construction contract, the double ditch was to have been filled in by the county. Both agree that this was not done. Bradshaw testified that this area was not filled in because the appellant had planted trees along the old ditch, making it either difficult or impossible for the crews to fill in this area. Bradshaw also testified that he had discussed this matter extensively with the appellant, and that the two men agreed that the county would try to fill the shelf created by the trial ditch with dirt appellant planned to remove from his pond. Appellant apparently did not provide this dirt as planned and the shelf was never filled.

The construction of the new ditch included placing a fifteen inch culvert on the west end of the old ditch. Bradshaw testified that this was done to prevent erosion of the ditch. Appellant claims that this culvert restricted the drainage to the box culvert that existed at the time the stipulation was signed. The result, according to appellant, is that water backs up on his property and causes substantial damage to his crops.

At one point, appellant petitioned the county board for permission to tile into the old ditch. This petition was denied. The county refused to let appellant gain any additional drainage without paying $8,000 to join the new ditch system. Appellant claims that under the stipulation, he retained the right to tile into the old ditch. He testified that he was told both by Richard Bradshaw and by Lester Anderson, a Blue Earth county commissioner, that under the stipulation he was only prohibited from tiling directly into the new ditch and that he was free to tile into the old ditch. Appellant testified regarding the conversation he alleges took place between him and Anderson:

[Anderson] indicated that whatever existing drainage that I had at that time I still maintain. Anything less than putting a pipe directly into the new ditch or pumping anything into the new ditch is exactly what he told me.

The trial court nevertheless restrained the appellant from tiling into the old ditch.

ISSUES

1. Did the trial court err in issuing an order restraining appellant from tiling into the old ditch?

2.

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Bluebook (online)
415 N.W.2d 394, 1987 Minn. App. LEXIS 5027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wingen-v-blue-earth-county-minnctapp-1987.