Thomas R. CROWEL, Appellant (Petitioner below), v. MARSHALL COUNTY DRAINAGE BOARD, Appellee (Respondent below).
No. 50S03-1202-MI-71.
Supreme Court of Indiana.
July 30, 2012.
971 N.E.2d 638
James N. Clevenger, Plymouth, IN, Attorney for Appellee.
Bryan H. Babb, Stephen C. Unger, Indianapolis, IN, Attorneys for Amicus Curiae Association of Indiana Counties.
SULLIVAN, Justice.
Thomas Crowel appeals a Marshall County Drainage Board order assessing him a portion of a drain-reconstruction project‘s costs, contending that he receives no benefit from the project because his land was adequately drained before the reconstruction. We affirm the assessment because under Indiana law, all landowners whose surface water flows into a drain receive a benefit by virtue of that drainage.
Background
The Indiana Drainage Law,
Myers Drain is a regulated drain in Walnut Township, Marshall County, Indiana. It was constructed between 1909 and 1913 and consists of an open ditch, called Myers Ditch, and eight clay-tile arms. The present case concerns the Marshall County Drainage Board‘s plans for reconstruction of Arm #7 of the Myers Drain.
The watershed2 of Arm #7 is approximately 358 acres and consists of commercial, residential, and agricultural properties. Pursuant to statute, Marshall County Surveyor Larry Fisher filed a report with the Board classifying Arm #7 as a drain in need of reconstruction on the basis that the drain was inadequate to perform the function for which it had been constructed. See
Petitioner Thomas Crowel owns 26 acres of farmland within Arm #7‘s watershed. The proposed schedule of assessments called for his 26 acres to be assessed $7,055.41. After receiving notice to that effect, Crowel (and a few other landowners) filed written objections with the Board prior to the public hearing.
On March 15, 2010, the Board held a public hearing. Surveyor Fisher first discussed the reason for the proposed reconstruction, explaining that the existing tile was too small to drain the water that accumulated after a heavy rainfall. This
Crowel and his attorney were the first members of the public to speak at the hearing. Crowel maintained that he was not within the watershed of the Myers Drain because he paid a maintenance assessment on the Ballinger Drain. He also testified that he had never suffered the flooding problems afflicting the landowners at the lower end of the watershed and, as a result, that his property would not be benefited by the reconstruction. He admitted, however, that a small corner of his property occasionally had standing water, but he asserted that this was because a private tile drain that was supposed to drain into Arm #7 had been blocked by a utility company‘s gas line. Crowel‘s attorney then posed questions to the Board concerning the benefit Crowel would receive from the reconstruction project, the procedures followed to arrive at the proposal, Crowel‘s private tile drain and the parties responsible for clearing it, and the criteria used to assess the lands within the watershed.
The Board, Surveyor Fisher, or both responded to each of these objections and concerns. Fisher explained that Crowel was paying a maintenance assessment on the Ballinger Drain because the Myers and Ballinger watersheds previously had been combined together for maintenance purposes. He also explained that the Board had no jurisdiction over Crowel‘s private tile drain and that, because it was blocked by a gas line, Crowel would have to talk to the gas company and the highway department about getting his private tile unblocked; but Fisher and a Board member also explained that Crowel‘s land would be benefited if the blockage were removed. Fisher and Board member Jack Roose also explained that, because Crowel‘s property is at the high end of the watershed, surface-water runoff from his land contributes to the flooding of lower-lying lands. Fisher explained that this project benefited Crowel because someone else was receiving his water. He also explained that, in determining the flow of water, he had looked at the topography of the land and had run a hydrology program to determine the volume of water entering the drain from each parcel. Fisher then testified that, in determining the assessment amounts, he and the Board had “look[ed] at the watershed and the use of the watershed,” “look[ed] at the potential for runoff,” and “determine[d] what the total watershed [was].” Ex. A, at 33-34. Finally, Fisher clarified that water drained from Crowel‘s property in two ways—his private tile (once cleared) and surface-water runoff.
At the conclusion of the meeting, the Board found that the schedule of costs, damages, and expenses of the proposed reconstruction would be less than the benefits accruing to the owners of land benefited by the construction, as required by statute,
On March 31, 2010, Crowel filed a petition for judicial review in Marshall Circuit Court, see
7. The evidence shows that the Petitioner‘s farm ground is at or near the higher end of the watershed area and the natural flow of storm water run-off carries the water from his real estate to that of the lower situated landowners.
8. The Court finds that flooding problems suffered by the affected (primarily residential) landowners at the lower portion of the watershed result in part from dealing with the water run-off from the Petitioner‘s farm ground and the other agricultural ground located at the highest point of the watershed area.
9. The Drainage Board found it to be appropriate for all parcel owners within the watershed to bear some cost of the project and established a tiered rate structure for agricultural acreage, residential acreage (double the agricultural rate) and commercial acreage (triple the agricultural rate).
10. The Petitioner alleges that the Board‘s decision was arbitrary, capricious, unlawful or not supported by substantial evidence in that the decision was not based upon any drainage study or any scientific method.
11. The evidence before the Board at the public hearing held on March 15, 2010, included detailed maps of the watershed area to include the Petitioner‘s acreage as well as profile and elevation studies of the newly proposed drain.
12. The testimony of the surveyor at the public hearing held on March 15, 2010, established that the Petitioner‘s property fell within the watershed of Arm #7 of the Myers Drain and that surface runoff water from his property contributed to the flooding problems experienced by the homeowners at the lower end of the watershed.
13. The Petitioner did not present any credible evidence that his property was not within the watershed of Arm #7 of the Myers Drain.
14. The Petitioner‘s primary allegation was that his property would not be benefited because his property did not flood when the parcels lower in the watershed flooded.
15. The Board‘s finding that his property contributed to the flooding problems of the lower owners and that it was therefore appropriate that as a parcel within the watershed, he should contribute to the cost of the project is not arbitrary, capricious, nor unlawful and is supported by substantial evidence.
Appellant‘s App. 5-6. The court subsequently denied Crowel‘s motion to correct errors.
The Court of Appeals reversed, in a 2-1 decision. Crowel v. Marshall Cnty. Drainage Bd., 951 N.E.2d 290 (Ind.Ct.App.2011). Writing for himself and Judge Kirsch, Judge Mathias held “that, as a matter of law, relieving the lower-lying parcels from flooding occasioned by the natural flow of surface water from Crowel‘s property does not benefit Crowel‘s land and, therefore, cannot form the basis of the reconstruction assessment levied against him.” Id. at 298. Judge Vaidik dissented, arguing that Crowel‘s property is benefited because it is located in the watershed and, as a result, drains surface
The Board sought, and we granted, transfer, Crowel v. Marshall Cnty. Drainage Bd., 963 N.E.2d 1118 (Ind.2012) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A). Amicus Curiae, the Association of Indiana Counties, filed a brief in support of the Board‘s Petition to Transfer.3
Discussion
Crowel makes a host of often overlapping arguments, but his challenge to the Board‘s order boils down to three general claims. First, he maintains that his property will not be benefited by the reconstruction project because he personally has no drainage problems and that the Board‘s conclusion that he will be benefited simply because surface water from his land naturally flows into the drain is arbitrary, capricious, unlawful, and not supported by substantial evidence. Second, he argues that the method used by the Board in establishing the schedule of assessments was arbitrary, capricious, unlawful, and not supported by substantial evidence. Lastly, he asserts that, at the very least, the benefits attributed to his land are excessive.
I
All agree that the Drainage Law requires that assessments levied for a drain-reconstruction project be apportioned to the benefits accruing to each parcel of land.
Crowel argues that the record is devoid of evidence supporting the Board‘s conclusion that his land is within Arm #7‘s watershed or that surface-water runoff from his land contributes to the flooding of the lowlands. The trial court found that there was substantial evidence to support these conclusions, and the Court of Appeals agreed, Crowel, 951 N.E.2d at 296 nn. 1 & 2 (majority opinion). We summarily affirm on these issues. App. R. 58(A)(2). But Crowel maintains that, even if he is in the watershed, his property will receive absolutely no benefit from the reconstructed drain because his land does not flood. And he maintains further that the Board cannot, as a matter of law, attribute a benefit to his land solely by virtue of the fact that his surface runoff
A
The current version of the Drainage Law was enacted in 1981. Pub. L. No. 309-1981, § 101, 1981 Ind. Laws 2409, 2893-2962 (codified as amended at
Our decisions have identified numerous criteria for determining whether land was benefited under prior statutes, but they also have articulated several limiting principles. E.g., Lipes, 104 Ind. at 506-07, 1 N.E. at 873. Among these is the general rule that only special benefits accruing to the land are to be considered and not general benefits that accrue to the landowner as a member of the public. Hubenthal, 239 Ind. at 650, 159 N.E.2d at 852-53; Lipes, 104 Ind. at 506-08, 1 N.E. at 873-74. Benefits have been deemed special when they have increased the value of the property, relieved it from burdens, or made it adaptable to a purpose that enhanced its value. Hubenthal, 239 Ind. at 650, 159 N.E.2d at 853; Lipes, 104 Ind. at 507-08, 1 N.E. at 874. Our prior cases also hold that the benefit need not be immediate and direct to justify an assessment and that, consequently, “[f]uture possibilities, if any, as well as collateral or indirect benefits, may be considered.” Hubenthal, 239 Ind. at 650, 159 N.E.2d at 853 (internal quotation marks and citations omitted); accord Hinesley, 175 Ind. at 14, 93 N.E. at 275; Culbertson, 152 Ind. at 125-26, 52 N.E. at 702; Lipes, 104 Ind. at 508, 1 N.E. at 874.
Relying on Hubenthal, Crowel argues that a drainage board “may not consider run-off in assessing costs.” Appellant‘s Br. 15. This is so, he continues, because “surface water runoff which may eventually end up in a drain is not a specific benefit to the property and the landowner may not be assessed for the construction project costs based upon the natural drainage of his land.” Appellant‘s Reply/Response to Amicus Curiae Br. 5. Crowel‘s reliance on Hubenthal is misplaced for several reasons.
In Hubenthal, assessments were levied for the cleaning and repair of a ditch extending through several counties. 239 Ind. at 647-48, 159 N.E.2d at 851. All affected lands were divided into four watershed areas and “the assessment per acre was arrived at ... by first estimating the cost of an arbitrary segment of ditch which laid within a watershed area and
Moreover, other decisions from this Court cut against Crowel‘s reasoning. For instance, in Culbertson we rejected the appellants’ contention that their lands were not benefited because they were sufficiently drained through artificial ditches already in place and because they could not reach the proposed drain without crossing the lands of others. 152 Ind. at 124, 52 N.E. at 701. Similarly, in Hinesley the appellants contended that their lands were not benefited by a drainage project because prior to the project the drain had been a natural watercourse and, consequently, that they had the right to drain their surface water onto the lands of others. 175 Ind. at 13, 93 N.E. at 275. This Court held that “it does not follow as a matter of law that their lands are not benefited by, and cannot be assessed for, the improvement.” Id. at 14, 93 N.E. at 275; see also Sharp v. Eaton, 175 Ind. 441, 446, 94 N.E. 753, 755 (1911) (“The fact that the lands of appellants were sufficiently drained under the existing conditions does not require the conclusion, as a matter of law, that they would not be so benefited as to justify assessments to aid in the construction of the drain.“); cf. Zigler v. Menges, 121 Ind. 99, 109, 22 N.E. 782, 786 (1889) (“The assessment is laid upon the land benefited, and not merely upon the land actually drained, for the benefit may extend beyond the specific parcel which is reclaimed.” (citation omitted)).6
But most fatal to Crowel‘s reliance on Hubenthal is that it was decided under a different statute. The principles set out in our decisions applying prior statutes may or may not be relevant under the current statute. For example, in Lipes we articulated the special-benefits rule and attempted to set out what types of benefits were special, rather than general, because the statute at issue was broadly worded and provided no guidance as to what the Legislature intended to be considered a benefit for purposes of apportioning assessments. 104 Ind. at 506-08, 1 N.E. at 873-74. But suppose the Legislature subsequently enacted a statute that provided guidance on how to determine benefits that was in some way inconsistent with the rules in Lipes—in such a case, it would be indefensible to claim that Lipes should apply rather than the statute. In light of this, we proceed to consider the applicable statutes.
B
In applying a statute, our primary goal is to ascertain and give effect to the Legislature‘s intent. E.g., George v. Nat‘l Collegiate Athletic Ass‘n, 945 N.E.2d 150, 154 (Ind.2011); City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781, 784-86 (Ind.2008). The best
Section 50 of the Drainage Law requires that assessments for the reconstruction of a regulated drain be apportioned to the benefits accruing to each parcel of land, and it provides that “[t]he board may consider the factors listed in section 112 of this chapter in preparing the schedules.”
(a) In determining benefits to land under section[] 50 ... of this chapter, the board may consider:
(1) the watershed affected by the drain to be constructed, reconstructed, or maintained;
(2) the number of acres in each tract;
(3) the total volume of water draining into or through the drain to be constructed, reconstructed, or maintained, and the amount of water contributed by each land owner;
(4) the land use;
(5) the increased value accruing to each tract of land from the construction, reconstruction, or maintenance;
(6) whether the various tracts are adjacent, upland, upstream, or downstream in relation to the main trunk of the drain;
(7) elimination or reduction of damage from floods;
(8) the soil type; and
(9) any other factors affecting the construction, reconstruction, or maintenance.
The statute contemplates that a parcel of land at the high end of a watershed that has adequate drainage due to natural surface-water runoff can be benefited by the reconstruction of a regulated drain at the lower end of the watershed. The first factor in subsection 112(a) that a drainage board may consider is “the watershed affected by the drain to be ... reconstructed.”
This understanding of subsection 112(a) is fortified by other provisions of the Drainage Law. Recall that county drainage boards have jurisdiction over all regulated drains in their respective counties, unless otherwise provided.
Additionally, the statutory provision applicable to “urban drains” requires that “in determining benefits and assessments for an urban drain ... [t]he watershed, or entire land area drained or affected by the urban drain, shall be considered to be benefited and shall be assessed.”
We conclude that the applicable statutes permit a drainage board to conclude that all landowners whose surface water flows into a regulated drain are benefited by the reconstruction of that drain, though some parcels may receive greater benefits than others (and should therefore be assessed accordingly).
C
The majority in the Court of Appeals also relied on Hubenthal but offered a more refined argument than Crowel. The lynchpin of the court‘s argument was the following passage:
In the apportionment of benefits, the viewers may not limit their consideration to the legal liability, which the law imposes generally upon the landowners of a watershed area by reason of indirect benefits which they receive from the drain, but they must also consider the fact that the owners of the higher land have a right to the natural drainage of their land and that the owners of the low lands must assume this burden different from their better situated neighbors. And further, that although the owners of the higher lands are chargeable for the additional burden caused by their artificial drainage, owners of the low lands must also be
charged according to the benefits which they receive from the increased artificial drainage which the ditch provides.
Hubenthal, 239 Ind. at 651, 159 N.E.2d at 853 (emphasis added) (internal citations omitted). The majority reasoned that this passage “is a corollary to Indiana‘s common law ‘common enemy doctrine’ of surface water diversion.” Crowel, 951 N.E.2d at 297 (citation omitted). According to the majority, a landowner at the higher end of the watershed has a right to natural surface-water drainage that burdens lower lands, and the trial court erred in failing to consider “Crowel‘s right to the natural drainage of his land in upholding the Drainage Board‘s assessment.” Id. “Although it may be inconsistent with the concept of being a ‘good neighbor,’ or a more laudable and generalized concept of the common good,” the majority reasoned, “under the common enemy doctrine, Crowel is entitled to the additional, natural drainage of surface water afforded his land due to its location on the high end of the watershed, and he is not liable to his neighbors for any damage to their property resulting from that drainage.” Id. at 298 (citation omitted). While this reasoning is fairly supported by the language in Hubenthal, a closer examination reveals that the common-enemy doctrine supports attributing a benefit to Crowel‘s land.
The common-enemy doctrine is one of three general rules adopted by American courts to deal with the draining of surface waters, the other two being the “civil law rule” and the “reasonable use rule.” E.g., Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4, 8-10 (1956) (Brennan, J.). In its purest form it provides that surface water is a common enemy and, as such, every landowner “has an unlimited and unrestricted legal privilege to deal with the surface water on his [or her] land as he [or she] pleases, regardless of the harm which he [or she] may thereby cause to others.” Stanley V. Kinyon & Robert C. McClure, Interferences with Surface Waters, 24 Minn. L. Rev. 891, 898 (1940); e.g., Taylor v. Fickas, 64 Ind. 167, 173-74, 176 (1878); Gannon v. Hargadon, 92 Mass. 106, 10 Allen 106, 109-10 (1865); Barkley v. Wilcox, 86 N.Y. 140, 145-48 (1881). In contrast, the civil-law rule “is that a person who interferes with the natural flow of surface waters so as to cause an invasion of another‘s interests in the use and enjoyment of his [or her] land is subject to liability to the other.” Kinyon & McClure, supra, at 893 (emphasis in original); e.g., Nininger v. Norwood, 72 Ala. 277, 282-83 (1882); Ambrosio v. Perl-Mack Constr. Co., 143 Colo. 49, 351 P.2d 803, 805 (1960) (en banc) (per curiam). Settled between these two extremes is the reasonable-use rule, under which a landowner does not have an unqualified privilege “to deal with surface water as he [or she] pleases, nor is he [or she] absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others,” Kinyon & McClure, supra, at 904; rather, each landowner “is legally privileged to make a reasonable use of his [or her] land, even though the flow of surface waters is altered thereby and causes some harm to others,” and he or she “incurs liability only when his [or her] harmful interference with the flow of surface water is unreasonable, id. See Bassett v. Salisbury Mfg. Co., 43 N.H. 569, 577-79 (1862) (adopting reasonable-use rule in context of percolating ground water); see also Swett v. Cutts, 50 N.H. 439, 443-46 (1870) (extending Bassett rule to surface water); accord Armstrong, 120 A.2d at 10.
The logic employed by the Court of Appeals and the language in Hubenthal reflect not the common-enemy rule but the civil-law rule. In essence, the majority held that Crowel‘s land at the high end of the watershed is not benefited because, as
But Indiana follows a modified version of the common-enemy rule, not the civil-law rule. Our case law provides “that surface water which does not flow in defined channels is a common enemy and that each landowner may deal with it in such manner as best suits his [or her] own convenience. Such sanctioned dealings include walling it out, walling it in[,] and diverting or accelerating its flow by any means whatever.” Argyelan v. Haviland, 435 N.E.2d 973, 975 (Ind.1982) (emphasis added); accord Pflum v. Wayne Cnty. Bd. of Comm‘rs, 892 N.E.2d 233, 237 (Ind.Ct.App.2008); Bulldog Battery Corp. v. Pica Invs., Inc., 736 N.E.2d 333, 339 (Ind.Ct.App.2000); Pickett v. Brown, 569 N.E.2d 706, 707 (Ind.Ct.App.1991), trans. denied. That said, our common-enemy rule does not allow a landowner to “collect or concentrate surface water and cast it, in a body, upon his [or her] neighbor.” Argyelan, 435 N.E.2d at 976 (citations omitted).
It is true that under Indiana law, the owner of higher lands is not liable for flooding of lower lands caused by natural surface-water drainage from his or her land. Thus, the reconstruction of Arm #7 will not affect Crowel‘s liability to his lower-lying neighbors because he has none—there is no evidence that he has collected or concentrated surface water and cast it upon his neighbors. But this does not mean, ipso facto, that he receives no benefit from the reconstruction project, for it is also true that, under the common-enemy rule, his lower-lying neighbors have the right to protect their lands from the flooding caused by his natural drainage—for example, by damming his water out or by changing the grades of their lands. Id. at 975; Crowel, 951 N.E.2d at 300 (Vaidik, J., dissenting). The reconstruction project aims to alleviate flooding caused in part by Crowel‘s drainage and by doing so it decreases the chance that the owners of the flooded lands will take matters into their own hands and engage Crowel in a water war. As Judge Vaidik wrote, “[t]he avoidance of a future water war with his neighbors is also a benefit, albeit an indirect one, to Crowel‘s land.” 951 N.E.2d at 300; cf. Culbertson, 152 Ind. at 125, 52 N.E. at 702 (“Appellants’ position, that the viewers could only look at conditions as they existed at the time, is unsound. They could consider that the owners of intervening lands had the right to fight ‘the common enemy‘....“).8
It may be that one of the ancillary aims of the Drainage Law is to allow for a public solution that avoids the chaos potentially resulting from widespread water wars among neighbors. After all, it is a public law enacted under the State‘s police power, e.g., Gifford Drainage Dist. v. Shroer, 145 Ind. 572, 573, 44 N.E. 636, 636 (1896), that “was designed to establish a joint enterprise to solve the common
D
We hold that Indiana law allows a drainage board to assess a benefit to a tract of land based solely on the fact that surface water from that land flows into the regulated drain for which the assessment is levied. As a result, the trial court‘s order—which found that the Board‘s decision to attribute a benefit to Crowel on this basis was not arbitrary, capricious, or unlawful, and was supported by substantial evidence—was not erroneous.
II
Crowel‘s second general claim is that the manner in which the Board developed the schedule of assessments is arbitrary, capricious, unlawful, and not supported by substantial evidence.9 The Board classified the lands in the watershed as “agricultural,” “residential,” or “commercial,” and assessed agricultural lands at a base rate, residential lands at double the agricultural rate, and commercial lands at triple the agricultural rate. Crowel argues that this quasi-uniform per-acre assessment is similar to the assessment schedules invalidated in Hubenthal, 239 Ind. 646, 159 N.E.2d 850, and Whitley, Noble & Allen Joint Drainage Board v. Tschantz, 461 N.E.2d 1146 (Ind.Ct.App.1984), because although the Board employed a tiered rate structure there is a uniform per-acre assessment within the agricultural tier.
Hubenthal and Tschantz stand for the incontrovertible proposition that when a statute requires apportionment of assessments to benefits, assessments levied without considering benefits are invalid. For instance, in Hubenthal the Court explained:
In this case the assessment per acre was arrived at initially by the surveyor and viewers and finally by the court by first estimating the cost of an arbitrary segment of ditch which laid within a watershed area and then dividing the number of acres in the watershed area into said estimated cost. The extent to which the particular land would or would not be benefited as compared with other land in the area was not considered in establishing the particular assessment.
239 Ind. at 649, 159 N.E.2d at 852 (emphasis added); see also id. at 650, 159 N.E.2d at 852 (testimony of a viewer admitting that assessments were levied without con
But uniform per-acre assessments are not per se invalid. Schrader v. Porter Cnty. Drainage Bd., 880 N.E.2d 304 (Ind.Ct.App.2008), trans. denied; Clouse v. Noble Cnty. Drainage Bd., 809 N.E.2d 849 (Ind.Ct.App.2004), trans. denied. In Clouse, the Court of Appeals held that a uniform per-acre maintenance assessment was not arbitrary as a matter of law. Id. at 864. The assessments had been established after both the surveyor and the drainage board had examined the land and considered the factors listed in subsection 112(a), and because they had “considered the benefits to the tracts of land, Hubenthal and Whitley [were] inapposite.” Id. Writing for the court, Judge Najam explained that, “[i]n a watershed system, drainage within the watershed does not respect property lines, and a proration of benefits and assessments based on acreage is not unreasonable, provided that the benefits have been considered.” Id. In Schrader, a different panel applied Judge Najam‘s reasoning and upheld another uniform per-acre maintenance assessment. 880 N.E.2d at 311. Prior to establishing the flat rate, the surveyor had “toured the area, used topographical maps, and studied aerial photographs in considering the individual benefits.” Id.; cf.
We think the present case is more analogous to Clouse and Schrader than it is to Hubenthal and Whitley.10 The record demonstrates that the Board considered several of the benefit factors listed in subsection 112(a) in arriving at its schedule of assessments. Again, subsection 112(a) provides in relevant part as follows:
(a) In determining benefits to land under section[] ... 50 ... of this chapter, the board may consider:
(1) the watershed affected by the drain to be constructed, reconstructed, or maintained;
(2) the number of acres in each tract;
(3) the total volume of water draining into or through the drain to be constructed, reconstructed, or maintained, and the amount of water contributed by each land owner;
(4) the land use;
(5) the increased value accruing to each tract of land from the construction, reconstruction, or maintenance;
(6) whether the various tracts are adjacent, upland, upstream, or downstream in relation to the main trunk of the drain;
(7) elimination or reduction of damage from floods;
(8) the soil type; and
(9) any other factors affecting the construction, reconstruction, or maintenance.
III
Crowel‘s third claim is that, at the very least, the benefits attributed to his land are excessive and that, consequently, his assessment is excessive. But this claim is not available for review.
Affected landowners who are dissatisfied with a drainage board‘s order may file a petition for judicial review “in the circuit or superior court of the county in which the board is located.”
(a) Whenever a petition for judicial review is filed on the ground that:
(1) the board found that the petitioner‘s land would be benefited by the construction, reconstruction, or maintenance of a drain, and the benefits assessed were excessive; or
(2) the petitioner‘s lands would be damaged by the construction, reconstruction, or maintenance of a drain, and:
(A) the board failed to so find; or
(B) the amount of damages awarded was inadequate;
the court shall proceed to hear the issue of benefits or damages de novo. A change of venue may be taken from the judge and from the county, and a jury trial may be obtained, in accordance with the rules governing the trial of civil actions. An appeal may
be taken in accordance with the rules governing appellate procedure.
(b) Whenever a petition for judicial review is filed on any ground other than those set forth in subsection (a), the review shall be heard by the court without the intervention of a jury. The court may not try or determine the cause de novo, but shall consider and determine the cause exclusively upon the record made before the board and filed with the court. A change of venue may be taken from the judge under the rules governing a change of venue in civil actions, but a change of venue may not be taken from the county. The proceedings shall be advanced upon the docket of the court. If the court finds from the record before it that:
(1) the person filing the petition for review has complied with all procedures required under this chapter to properly present the matters set forth in the petition for review, and has exhausted his administrative remedies; and
(2) the decision or determination of the board is arbitrary, capricious, unlawful, or not supported by substantial evidence;
the court shall order the decision or determination of the board set aside and shall remand the matter to the board for further proceedings consistent with the findings and order of the court. If the court finds otherwise, the decision of the board shall be affirmed.
(c)....
(d)....
It is clear that the statute provides two tracks for judicial review of drainage board decisions.11 If a petitioner claims that the benefits attributed to his or her land are excessive or that the Board erred in attributing damages, he or she must proceed under subsection (a).
On the other hand, subsection (b) proceedings do not concern the individual plight of the petitioner so much as they concern whether the drainage board complied with the requirements of the statute.
The Board and Crowel agreed that this petition was brought under subsection (b),
Conclusion
We affirm the trial court‘s decision upholding the Marshall County Drainage Board‘s order and assessment schedule.
DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.