IOWA NATURAL RESOURCES COUNCIL, Aрpellant, v. Allen VAN ZEE, Homer Boyd, and Wilber Van Zee, Appellees.
No. 52931.
Supreme Court of Iowa.
April 9, 1968.
The amount plaintiff would have been entitled to recover from Shook having been determined, as stated, this establishes the amount of defendant‘s liability to plaintiff.
It must be remembered defendant is not liable for its own tort but because it agreed to reimburse plaintiff for Shook‘s tort. This is not a case of an Iowan‘s liability for a tort committed in Oklahoma, but a case of a Texan‘s liability for a tort committed in Oklahoma for which defendant had contractually agreed to pay.
V. Plaintiff‘s contention presents a conflicts problem which we do not believe belongs in the present case. Among the cases cited by plaintiff as authority for his position are Fabricius v. Horgen, 257 Iowa 268, 132 N.W.2d 410, and Flogel v. Flogel, 257 Iowa 547, 133 N.W.2d 907. We do not believe they aid plaintiff. Those actions were against respective alleged wrongdoers who were either residents of, or subject to suit in, the states where the lawsuits were filed, which were held to have the “most significant contacts” with the disputed matter.
Nor do we believe the contract cases cited by plaintiff where the “center of gravity” or “grouping of contacts” theory was resorted to by the courts sustain plaintiff‘s contention. The law held to be applicable there related to matters bearing upon the execution, interpretation, validity or performance of a contract.
Our present problem is how much defendant is obligated to pay plaintiff under the insuring agreement. Determination of this question does not involve a conflicts problem.
With directions to the trial court to make a determination of the amount of damages to which plaintiff is entitled in accordance with this opinion, the case is
Affirmed and remanded.
All Justices concur.
Life, Davis & Life, Oskaloosa, for appellees.
LARSON, Justice.
Subsequent to the enactment of what is now
Upon written complaint of a third party, the plaintiff investigated the defendants’ structures and construction and then ordered defendants to cease and desist from further construction. They refused to do so, and also refused to make application for a permit. Plaintiff then instituted an action in equity to enjoin the defendants from further construction and also praying for mandatory injunctive relief as to the already-existing structures. After answer and reply, a motion for an adjudication of law points under
The trial court concluded the issue was merely one of statutory construction and held that paragraph 4 of
I. It is a cardinal principle of statutory construction that the intent of the legislature is to be gleaned from the statute read as a whole, and not from any section or portion thereof taken piecemeal. City of Vinton v. Engledow, 258 Iowa 861, 140 N.W.2d 857; Rath v. Rath Packing Co., 257 Iowa 1277, 136 N.W.2d 410; City of Nevada v. Slemmons, 244 Iowa 1068, 59 N.W.2d 793, 43 A.L.R.2d 693. The problem presented requires us to examine carefully each of the provisions or paragraphs of
Chapter 203, Laws of the Fifty-third General Assembly as amended, now provides in
“It shall be unlawful to suffer or permit any structure, dam, obstruction, deposit or excavation to be erected, used, or maintained in or on any floodway or flood plains, which will adversely affect the efficiency of or unduly restrict the capacity of the floodway, adversely affect the control, development, protection, allocation, or utilization of the water resources of the state, or adversely affect or interfere with the state comprehensive plan for water resources, or an approved local water resources plan, and the same are declared to be and to constitute public nuisances, provided, however, that this provision shall not apply to dams constructed and operated under the authority of chapter 469 as amended.
“The council shall have the power to commence, maintain and prosecute any appropriate action to enjoin or abate a nuisance, including any of the foregoing nuisances and any other nuisance which adversely affects flood control.
“In the event any person desires to erect or make, or to suffer or permit, a structure, dam, obstruction, deposit or excavation, other than a dam, constructed and operated under the authority of chapter 469 as amended, to be erected, made, used or maintained in or on any floodway or flood plains, such person shall file a verified written application with the council, setting forth the material facts, and the council after an investigation or hearing, shall enter an order, determining the fact and permitting or prohibiting the same, upon such terms and conditions as it may prescribe.
“The council shall have the authority to maintain an action in equity to enjoin any such person from erecting or making or suffering or permitting to be made any structure, dam, obstruction, deposit, or excavation other than a dam constructed and operated under the authority of chapter 469, for which a permit has not been granted.
“The council shall have the power to remove or eliminate any structure, dam, obstruction, deposit or excavation in any floodway which adversely affects the efficiency of or unduly restricts the capacity of the floodway, by an action in condemnation, and in assessing the damages in such proceeding, the appraisers and the court shall take into consideration whether the structure, dam, obstruction, deposit or excavation is lawfully in or on the floodway.” (Emphasis added.)
The legislature specifically provided and enumerated in this section the grounds upon which the council could obtain abatement of an existing structure. Specifically, it provided relief by way of condemnation in the case of existing objectionable structures. Nevertheless, plaintiff contends that mandatory injunctive relief is also inferentially available under paragraph 4 by mere
The granting of injunctive relief in most cases is limited to the restraining of actual or threatened acts injurious to the complainant‘s rights and is not to compel the undoing of an injury. Hanna v. Nowell (Mo.App.), 330 S.W.2d 595; 28 Am.Jur., Injunctions, §§ 3, 17. Such injunctions are commonly called prohibitory injunctions and have the effect of preserving the status quo and operate to restrain the commission or continuance of an act. Schubach v. McDonald, 179 Mo. 163, 78 S.W. 1020, 65 L.R.A. 136, 101 Am.St.Rep. 452, writ of error dismissed in Schubach v. Hough, 196 U.S. 644, 25 S.Ct. 797, 49 L.Ed. 632. Apparently this was the type of injunction visualized in paragraph 4 of this section.
However, a court of equity can and in a proper case will award mandatory injunctive relief which will compel some affirmative act, thus going beyond mere restraint. Falcon v. Boyer, 157 Iowa 745, 142 N.W. 427. Although courts look upon the latter with disfavor and such injunctions are granted with caution in cases of great necessity, they may be proper. Black v. Jackson, 177 U.S. 349, 20 S.Ct. 648, 44 L.Ed. 801; Lyle v. City of Chicago, 357 Ill. 41, 191 N.E. 255; 28 Am. Jur., Injunctions, § 20. This type of injunction has reasonable application under paragraph 3 of this section.
Injunctive relief by abatement is a harsh and severe remedy and, except in cases of nuisances or other great necessity, it should not be granted unless that authority is clearly and specifically provided by the lеgislature. Paragraph 4 of the section does not so provide.
The legislature here demonstrated it knew how to state this remedy in paragraphs 1 and 2. It is apparent, if it wished, it could have provided for abatement as well as restraint in paragraph 4. It did not choose to do so. Having not done so, it is reasonable to believe it did not wish to grant that extreme relief for the mere failure to obtain a permit. That being the case, plaintiff‘s appeal must be to the legislature, not to the courts.
It is well established that it is not the province of the courts to pass upon the wisdom, policy, or advisability of a statute. Rath v. Rath Packing Co., supra, 257 Iowa 1277, 1285, 136 N.W.2d 410; Dickinson v. Porter, 240 Iowa 393, 399, 35 N.W.2d 66, and citations; Steinberg-Baum & Co. v. Countryman, 247 Iowa 923, 929, 77 N.W.2d 15, 18; Town of Mechanicsville v. State Appeal Board, 253 Iowa 517, 529, 530, 111 N.W.2d 317. We conclude that the legislature envisioned the problem presented in the case at bar and selected the remedies it deemed appropriate in each situation. We should not, by judicial fiat, extend that authority, but carefully study each remedial measure to sеe what recourse was afforded the Natural Resources Council under all adverse circumstances.
II. The remedies the legislature did provide under
III. In view of the fact that this case will require further proceedings in the district court, we should consider the other law points upon which the trial court did not rule.
Defendants contend
In the second of the law points submitted to the trial court it was asked whether “the authority conferred upon the plaintiff by the state legislature in
Generally, police power is the exercise of the state‘s right to regulate the use of property to prevent any use thereof which would be harmful to the public interest. State v. United States Express Co., 164 Iowa 112, 145 N.W. 451; City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921; Davis, Brody, Wisniewski v. Barrett, 253 Iowa 1178, 115 N.W.2d 839.
It is also well established that whether legislation is a lawful exercise of a state‘s “police power” depends upon whether the collective benefit therefrom outweighs the specific restraint imposed thereby. Benschoter v. Hakes, 232 Iowa 1354, 8 N.W.2d 481. The means used must be rationally related to the end sought. Pierce v. Incorporated Town of La Porte City, 259 Iowa 1120, 146 N.W.2d 907.
In сonstruing a statute we presume it to be constitutional. Every reasonable presumption may be called upon to support it. It will only be declared unconstitutional if there is no reasonable basis to sustain it. Green v. City of Mt. Pleasant, 256 Iowa 1184, 1196, 131 N.W.2d 5; Edge v. Brice, 253 Iowa 710, 716, 113 N.W.2d 755; Iowa Hotel Ass‘n. v. State Board of Regents, 253 Iowa 870, 876, 114 N.W.2d 539; Spurbeck v. Statton, 252 Iowa 279, 284, 106 N.W.2d 660; Diamond Auto Sales, Inc. v. Erbe, 251 Iowa 1330, 1335, 105 N.W.2d 650.
“It is hereby recognized that the protection of life and property from floods, the prevention of damage to lands therefrom and the orderly development, wise use, protection and conservation of the water resources of the state by the considered and proper use thereof, is of paramount importance to the welfare and prosperity of the people of the state, and, to realize these objectives it is hereby declared to be the policy of the state to correlate and vest the powers of the state in a single agency, the Iowa natural resources council, with the duty and authority to establish and enforcе an appropriate comprehensive state-wide program for the control, utilization, and protection of the surface and ground-water resources of the state. It is hereby declared that the general welfare of the people of the state of Iowa requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable, and that the
waste or unreasonable use, or unreasonable methods of use, of water be prevented, and that the conservation of such water be exercised with the view to the reasonable and beneficial use thereof in the interest of the people, and that the public and private funds for the promotion and expansion of the beneficial use of water resources shall be invested to the end that the best interests and welfare of the people are served. “Water occurring in any basin or in any watercourse, or other natural body of water of the state, is hereby declared to be public waters and public wealth of the people of the state of Iowa and subject to use in accordance with the provisions of this chapter, and the control and development and use of water for all beneficial purposes shall be in the state, which, in the exercise of its police powers, shall take such measures as shall effectuate full utilization and protection of the water resources of the state of Iowa.”
“The council shall have jurisdiction over the public and private waters in the state and the lands adjacent thereto necessary for the purposes of carrying out the provisions of this chapter. The council may construct flood control works or any part thereof. In the construction of such works or in making surveys and investigations or in formulating plans and programs relating to the water resources of the state, the council may cooperate with other states or any agency thereof or with the United States or any agency of the United States, or with any person as defined in this chapter.
“Upon application by any person for permission to divert, pump, or otherwise take waters from any watercourse, underground basin or watercourse, drainage ditch or settling basin within the state of Iowa for any purpose other than a nonregulated use, the council shall cause to be made an investigation of the effect of such use upon the natural flow of such watercourse, the effect of any such use upon the owners of any land which might be affected by suсh use, and the effect of any such use upon the state comprehensive plan for water resources, and shall hold a hearing thereon. Upon application by any person for approval of the construction or maintenance of any structure, dam, obstruction, deposit or excavation to be erected, used, or maintained in or on the flood plains of any river or stream the council shall cause an investigation to be made of the effect thereof on the efficiency and capacity of the floodway and on the state comprehensive plan for water resources. In determining the effect of any such proposal the council shall consider fully its effect on flooding or flood control both to any proposed works and to adjacent lands and property, on the wise use and protection of water resources, оn the quality of water, on fish, wildlife and recreational facilities or uses, and on all other public rights and requirements.”
From a close reading of these sections it seems clear the purposes and the means used to accomplish them are rationally related to the welfare and prosperity of the people of this state, and are a valid exercise of police power.
In the absence of a showing by a complaining property owner that the restraint imposed upon him outweighs the collective benefit to the people of the state, it cannot be said there is an illegal taking. Benschoter v. Hakes, supra. These sections of
IV. A vital resource such as water must be subject to regulation by the state under the police power. Justice Holmes stated in a frequently-quoted phrase: “A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those
On the other hand, a river uncontrolled may at flood state become a devil, a destroyer of life and property, a disrupter of transportation and commerce vital to the state and its citizens. Vartelas v. Water Resources Comm., 146 Conn. 650, 153 A.2d 822. In any event, water and its control are obviously of paramount importance to the welfare of the people.
Proper control of rivers and streams, of course, involves the exercise of control of the use of property adjoining these streams or in the recognized floodway or flood plains. Police power properly regulates use of that property because uncontrolled use would be harmful to the public interest. On the other hand, eminent domain provides for the taking of private property because it is useful to the public. See Freund, Police Power, § 511. It may be said that whether the exercise of one or the other of these great powers of government is required depends upon the circumstances of the particular case. See O‘Connell, Iowa‘s New Water Statute—The Constitutionality of Regulating Existing Uses of Water, 47 Iowa L.Rev. 549, and Hines, A Decade of Experience under the Iowa Water Permit System, for a thorough and comprehensive analysis of this subject matter. We are satisfied, as plaintiff maintains, that
Analogous situations of interference with other property rights in and of themselves prеdict the validity of this legislation. Numerous times over many years zoning ordinances which substantially limit the use of one‘s property have been upheld as a valid exercise of police power. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; City of Des Moines v. Manhattan Oil Co., supra, 193 Iowa 1096, 1103, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322; Keller v. City of Council Bluffs, 246 Iowa 202, 207, 66 N.W.2d 113. Zoning ordinances also may regulate the use of riparian property and thereby limit or restrict riparian rights. Beuscher, Appropriation Water Law Elements in Riparian Doctrine States, 10 Buffalo L.Rev. 448, 457. However, such regulations may not extend to the destruction of an urban dweller‘s property or to deny a riparian owner the right to water, but merely limit its use in the public interest. O‘Byrne, Iowa‘s Water Resources, 206, 209.
“With the changing conditions necessarily attendant upon the growth and density of population and the ceaseless changes taking place in method and manner of carrying on the multiplying lines of human industry, the greater becomes the demand upon that reserve element of sovereignty which we call the police power, for such reasonable supervision and regulation as the state may impose, to insure observance by the individual citizen of the duty to use his property and exercise his rights and privileges with due regard to the personal and property rights and privileges of others.” City of Des Moines v. Manhattan Oil Co., supra, at page 1103 of 193 Iowa, at page 826 of 184 N.W. See also Steinberg-Baum & Co. v. Countryman, supra, 247 Iowa 923, 931, 77 N.W.2d 15, 19.
V. In view of our position taken in the foregoing divisions of this opinion in which we found (1) there was no authority vested in the council to obtain abatement of an existing structure under
VI. Under the provisions of the third paragraph of
[15] The council contends defendant should be required to file the application for a permit even though the structure has been completed so that the orderly procedure set out in
We are satisfied therе is nothing to indicate that the authority vested in the council under
The trial court is therefore directed to issue a writ of injunction enjoining and requiring the defendants to comply with
Modified and remanded.
All Justices concur, except RAWLINGS, J., and GARFIELD, C. J., who dissent.
RAWLINGS, Justice (dissenting).
Being unable to agree with the reasoning expressed in Divisions I and II of the majority opinion, and result reached, I respectfully dissent.
I. The question presented is whether
At the outset
“Water occurring in any basin or in any watercourse, or other natural body of water of the state, is hereby declared to be public waters and public wealth of the people of the state of Iowa and subject to use in accordance with the provisions of this chapter, and the control and development and use of water for all beneficial purposes shall be in the state, which, in the exercise of its police powers, shall take such measures as shall effectuate full utilization and protection of the water resources of the state of Iowa.”
With regard to the foregoing it is a well established principle of law that where there is a question as to applicability of a statute to particular circumstances, the purpose of the statutory enactment may be examined in order to determine its proper application. State v. Bishop, 257 Iowa 336, 340, 132 N.W.2d 455; Fabricius v. Montgomery Elevator Co., 254 Iowa 1319, 1322-1323, 121 N.W.2d 361; Fleming v. Hawkeye Pearl Button Co. (8 Cir.), 113 F.2d 52, 56; 82 C.J.S. Statutes § 349, page 730; and 50 Am.Jur., Statutes, section 309, page 297.
And the declared purpose of
Clearly the mischief here sought to be remedied is the creation by landowners, without a permit by the council, of structures within established floodways or flood plains for protection of the public. The only effective remedy for this mischief is a mandatory injunction to compel removal of offending unlawful structures.
In addition, if reasonably possible, effect should be given to every part of a legislative enactment and related acts. Stated otherwise, in seeking the meaning of a law the entire act and other related aсts and statutes should be considered. Ritter v. Dagel, Iowa, 156 N.W.2d 318, opinion filed February 6, 1968; State v. Charlson, Iowa, 154 N.W.2d 829, 831; Rath v. Rath Packing Co., 257 Iowa 1277, 1288-1289, 136 N.W.2d 410; and Manilla Community Sch. Dist. of Crawford and Shelby Counties v. Halverson, 251 Iowa 496, 501, 101 N.W.2d 705.
And if an act is susceptible to more than one interpretation or application, courts must give to it that interpretation or application which is logical, rather than one that is illogical or which will produce illogical results. Severson v. Sueppel, Iowa, 152 N.W.2d 281, 284; Brandon v. Roy, 259 Iowa 1271, 147 N.W.2d 810, 813; and Hardwick v. Bublitz, 253 Iowa 49, 53, 111 N.W.2d 309.
To hold as does the majority is to me an illogical interpretation of the Act for it denies the council its one effective tool by which to effectuate and carry out the self-evident intent and purpose of the Act, placing an insurmountable obstacle in the path of the council in its efforts to remedy the mischief sought by the Act itself to be prevented.
III. It is my understanding plaintiff contends relief by mandatory injunction is available, by implication if not expressly, to compel removal of offending structures upon a showing they were established or created within a floodwаy or flood plain after the effective date of
The first paragraph of
And
From the foregoing one conclusion is inescapable. The general assembly, in the exercise of its police powers, made it punishably unlawful, after effective date of the Act, to cause or permit construction of designated structures in or upon any floodway or flood plain of this state, at the same time making any such structures a public nuisance. See
Furthermore, a court of equity has jurisdiction to enjoin a public nuisance, the creation or maintenance of which is also a punishable offense.
As stated by Beuchert, 4 Natural Resources Journal, 486, 497-498: “The general rule is that the legislature may classify as a nuisance anything which is detrimental to the health, morals, peace, or welfare of the citizens of the state. It may also enlarge the category of nuisances by classifying as nuisances acts or things which were not so at common law. However, the legislature cannot classify as a nuisance something which is not so in fact. But this does not mean that the act or thing must actually be a nuisance at the time it is so classified by the legislature. Whenever a thing is of such a nature that it may become a nuisance, it may be regulated or prohibited. And where there is a substantial difference of opinion as to whether or not there is a real danger of a future nuisance, great deference will be given to the legislature.”
He concludes, loc. cit., 4 Natural Resources Journal 500: “Therefore, it would seem quite likely that legislation declaring that an obstruction of thе floodway is a public nuisance would be upheld. * * * the constriction of the floodway may well affect the entire community since * * * ponding is generally not limited to a narrow area. And the entire community will have to bear the cost of any flood relief program, the burden of which is increased in proportion to the increased damage caused by floodway encroachment. Moreover, the remedy in a suit for damages or for an injunction to abate a private nuisance may often be unavailable due to the difficulty of proving any particular damage or causal relationship between any one obstruction and particular realty.”
IV. The foregoing views find support in the second paragraph of
The words “including any of the foregoing nuisances” clearly refer to the first paragraph, quoted supra, which relates exclusively to post-statutory structures, with respect to which the council has power to commence an action “to enjoin or abate“. This is demonstrated by the fact the same paragraph permits abatement of pre-statutory structures provided the council can establish they constitute a nuisance.
V. In the same vein the third paragraph provides, inter alia: “In the event any person desires to erect or make, or to suffer or permit, a structure, dam, obstruction, deposit or excavation, * * * to be erected, made, used or maintained in or on any floodway or flood plain, such person shall file a verified written application with the council, setting forth the material facts, and the council after an investigation or hearing, shall enter an order, determining the fact and permitting or prohibiting the same, upon such terms and conditions as it may prescribe.” (Emphasis supplied.)
This mandatory provision can only apply to post-statutory structures alone.
VI. Then the fourth paragraph of
It is to me evident the foregoing clearly disсloses the council‘s remedy with respect to a post-statutory structure, is “the authority to maintain an action in equity to enjoin it as a public nuisance“.
VII. Finally, the fifth paragraph of this statute provides: “The council shall have the power to remove or eliminate any structure, dam, obstruction, deposit or excavation in any floodway which adversely affects the efficiency of or unduly restricts the capacity of the floodway, by an action in condemnation, and in assessing the damages in such proceeding, the appraisers and the court shall take into consideration whether the structure, dam, obstruction, deposit or excavation is lawfully in or on the floodway.”
I submit this paragraph of
Stated otherwise, under the language of paragraph five, a pre-statutory structurе which is not a nuisance under the Act is a “lawful” structure or a structure “lawfully in or on the floodway.” Its lawful character must be considered in assessing damages upon council removal or abatement by action in condemnation. However, a pre-statutory structure, which is a nuisance under the Act, is neither a “lawful” structure nor a structure “lawfully in or on the floodway.” While the council must still proceed by way of condemnation as to unlawful pre-statutory structures, the fact it is not one “lawfully in or on the floodway” may be considered in determining the measure of damages. In other words, “unlawful” as used in paragraph one applying strictly to post-statutory structures, and “lawfully” as employed in the fifth paragraph applicable exclusively to pre-statutory structures, have separable meanings attributable to the post-statutory or pre-statutory character of the structure in question.
VIII. It is to me evident
In Vartelas v. Water Resources Comm., 146 Conn. 650, 153 A.2d 822, 824, a case involving construction of legislation similar in language and having a purpose identical with that of the Act here under consideration, the court said: “In authorizing the exercise of the police power with respect to situations where there are no existing structures or encroachments within the lines established or to be established, as in the instant case, and the exercise of the power of eminent domain where there are structures or encroachments in existence within the lines established or to be established, the statute creates a classification within the power of the legislature to make. Between the two situations there is a natural and substantial difference germane to the subject and purposes of the legislation. State v. Gordon, 143 Conn. 698, 706, 125 A.2d 477; Franklin Furniture Co. v. City of Bridgeport, 142 Conn. 510, 514, 115 A.2d 435; Murphy, Inc. v. Town of Westport, 131 Conn. 292, 304, 40 A.2d 177, 156 A.L.R. 568; Second National Bank of New Haven v. Loftus, 121 Conn. 454, 460, 185 A. 423; see Chouinard v. Zoning Commission, 139 Conn. 728, 732, 97 A.2d 562.”
I would hold a similar distinction is created by the provisions of
Early restrictions on the form of injunction have given way to a more liberal construction of the court‘s power. It is now well settled that unless prohibited from so doing by some constitutional or statutory provision, a court of equity can, and in proper cases will award mandatory, including preliminary mandatory, relief as well as prohibitive injunctive relief.
In other words the court may by its mandate compel the undoing of those acts which have been illegally done. See 28 Am.Jur., Injunctions, section 17, page 506.
The factual circumstances disclosed by the pleadings here make clear the necessity of construing the word “enjoin” in the fourth paragraph of
To hold otherwise would emasculate and make operatively meaningless not only the first four paragraphs of
X. It appears that although plaintiff acted illegally in erecting a post-statutory structure in a floodway or flood plain, the majority now proposes to legalize such conduct by requiring the formality of filing an after-the-act “proper application“. Stated otherwise, the position taken by the majority serves, in effect, to make lawful by an after-the-fact application that which is by statute expressly made unlawful.
Pursuing this theory to a logical conclusion, if plaintiff now files an application and the council refuses him a permit, he may appeal to the district court. But, even though the court, on appeal, agrees with such decision of the council, the offending structure remains. Here another problem is presented. The majority says, at least inferentially, mandatory injunctive relief is not even then available to compel removal of the unlawful structure, the remedy being confined to proceedings in eminent domain.
In fact the majority says, among other things: “The legislature specifically provided and enumerated in this section the grounds upon which the council could obtain abatement of an existing structure. Specifically, it provided relief by way of condemnation in the case of existing objectionable structures. Nevertheless, plaintiff contends that mandatory injunctive relief is also inferentially available under paragraph 4 by merely showing that the defendants’ structures were within the flood plain and built without applying for and obtaining a permit. The trial court did not agree with this contention, and neither do we.” With this statement I cannot agree.
The issue before us is whether the Natural Resources Council has lawful authority to compel removal by mandatory injunction of a post-statutory structure placed in a floodway or flood plain where the statutorily required application for permission to so place such structure has not been filed, as a consequence of which no permit has ever issued.
I am satisfied the council not only has that authority but when it shows to a court having requisite jurisdiction a party has placed a post-statutory structure in a floodway or flood plain without having first filed the application required by law, and of necessity without benefit of permit, a mandatory injunction not only can but should issue.
XI. It is to me evident the majority opinion opens the door to a race between landowners and the council. If an individual, without obtaining the required permit, is successful in creating that which is punishably unlawful by the provisions of the first paragraph of
Well settled principles of statutory construction do not permit such a self-defeating result.
I would reverse.
GARFIELD, C. J., joins in this dissent.