Charles Carlson, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0028

Charles Carlson,
Appellant,

vs.

Faribault County Drainage Authority, et al.,
Respondents.

Filed June 21, 2021
Affirmed
Hooten, Judge

Faribault County District Court
File No. 22-CV-18-255

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
appellant)

Gerald W. Von Korff, Rinke Noonan, Ltd., St. Cloud, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Co nnolly, Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this appeal under Minn. Stat. § 103E. 095 (2020), appellant challenges the district
court’s affirmance of respondent Faribault County Drainage Authority’s improvement
order for a county ditch system. We affirm.

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FACTS
Appellant Charles Carlson ow ns farmland that is benefited by Faribault County
Ditch No. 24 (CD 24). The Faribault County Board of Commissione rs (the drainage
authority) acts as the drainage authority for CD 24.
1915 ditch construction and 1959 improvement
CD 24 was originally constructe d in 1915 as a buried tile system. 1 The ditch’s
original outlet drained into the Blue Earth River in Winnebago City Township. In 1959,
CD 24 was improved with the construction of 1,800 feet of deep open ditch and 8,700 feet
of shallow grassy waterway.2
2013 repair petition and proceedings
In June 2013, a third-party filed a petition for the repair of CD 24 with the drainage
authority because of persistent erosion issues during high water flows. From 2013 to 2016,
the drainage authority met numerous tim es to examine and resolve competing
recommendations for repair or improvement of CD 24. During that timeframe, a drainage
engineer appointed by the dr ainage authority and employe d by I+S Group, Inc. (ISG),
inspected CD 24 and conclude d that the ditch needed a mo re robust outlet rate control
structure to address persistent erosion. The ISG engineer also concluded that much of the
upstream portion of the waterway was not comp liant with the 1959 improvement project
profile, as some areas within the waterway were “higher than [the] legal grade set in 1959.”

1 In its brief, respondent describes a tile system as similar to an urban storm sewer, except
that water enters the tile system by a different mechanism.
2 Respondent defines a waterway as an artificial shallow and wide depression that conveys
water across the landscape.

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A compliance report from the co unty drainage inspector identified farms, including
Carlson’s farm, where the waterway and prot ective buffers were significantly out of
compliance, requiring repairs in both the upstream and downstream portions of the system;
Carlson’s farm abuts the downstream portion of the waterway.
Over several months, the drainage authority held a series of meetings to consider
landowner comments on how to address the CD 24 system’s problems. The drainage
authority presented repair- only options because a petition for improvement had not yet
been developed. Landowners supported immediate repair of the downstream portion of
CD 24 that passed through Carlson’s farm. However, at that time, some landowners also
advocated that a portion of the upstream, aboveground waterw ay should be replaced by
underground tile—which would constitute an improvement under Minn. Stat. § 103E.215
(2020).
2016 improvement petition
On June 17, 2016, a group of upstream la ndowners filed a separate formal petition
to improve the upstream portion of CD 24.
2016 repair order
On June 27, 2016, the drainage authority issued a final repair order for the
downstream section of CD 24, which abuts appellant’s land, and deferred action on the
upstream portions until the 2016 improvement petition was adjudicated. The 2016 repair
order identified “Option 2” of a June 2016 ISG engineering report as the repairs to be
completed. Appellant was not awarded damage s in the repair proceeding, and he did not

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appeal the repair order to the district court as either a benefits a nd damages appeal under
Minn. Stat. § 103E.091 (2020) or as an establishment appeal under Minn. Stat. § 103E.095.
Carlson’s collateral attacks on the 2016 repair order
In June 2017, after construction of th e repairs had already begun, Carlson
commenced a declaratory judgment action challenging the June 2016 repair order. Shortly
after, Carlson filed a motion for a temporary re straining order to stop the repairs, but his
motion was denied.
Next, Carlson filed a complaint with the drainage authority that upstream
landowners were obstructing the upstream por tion of CD 24. Foll owing an evidentiary
hearing, the drainage authority issued an order determining that the approved repair and
the pending improvement proceeding were the “most appropriate procedures to resolve all
of the concerns about the operation and configuration of the system, including the concerns
raised by Mr. Carlson.” Carlson filed an appeal of the drainage authority’s order in district
court and later voluntarily dismissed his appeal.
In December 2018, Carlson filed an inverse condemnation petition for mandamus
in district court, arguing that (1) the 2016 repair order was invalid, and the drainage
authority had taken his property without compensation by constructing repairs that caused
both temporary and permanent flooding to hi s land; and (2) that by including a control
structure, the repair had been converted into an improvement. The district court denied
Carlson’s petition and dism issed it with prejudice. Carls on appealed that order and then
voluntarily dismissed his appeal.

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Improvement petition proceedings
While the above litigation was pending, the drainage authority conducted
proceedings regarding the 2016 improvement petition under Minn. Stat. §§ 103E.241-.341
(2020). At the preliminary hearing, Carl son presented an advisory letter from a
professional engineer employed by Sambatek. In the letter, the Sambatek engineer
ultimately concluded that she was unable to offer an opinion as to whether either the
completed repair or proposed improvement would cause flooding to the drainage ditch
system. At no point in the improvement proceedi ngs or in his later appeal to the district
court did Carlson present any engineering evidence to support his belief that the repairs or
improvements to CD 24 would cause flooding on his property.
Final engineering report
The drainage authority’s final engineerin g report prepared by ISG noted that the
2016 repairs included the construction of two water control structures. The first control
structure was “installed at the end of the open ditch to transition flow from the open ditch
into the ravine outlet structures,” while th e second “included a rip rap spillway at the
transition of the waterway to th e open ditch to restore legal gr ade and to protect this area
from future erosion.” According to the engi neering report, these outlet controls were
designed to provide “enough water storage to slightly reduce peak flow rates from the
originally designed system while still pr oviding a free outlet to the waterway areas
upstream.”
Regarding existing conditions, the final engineering report explained that

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[t]he existing conditions model includes the existing mainline
tile, existing Branch B tile, ex isting waterway (current
conditions), and the existing open ditch outlet. It also includes
the recent [2016] repairs to the system . . . .

Additionally, the final engineering report ad dressed the adequacy of the outlet for the
proposed improvement:
With the combination of the 42-inch field crossing outlet
structure, 60 inch RCP outlet through the ravine, and rip rap
overflows down the ravine for extra erosion control protection,
it is the opinion of the Engineer that the outlet for Faribault
County Ditch No. 24 is adequate to handle the proposed
improvement.

Viewers’ report and property owners’ reports

Both the viewers’ report and property owners’ report issued in March 2018
incorporated the post-2016 preexisting conditions identified in the final engineering report
instead of the 1959 conditions.
Improvement order
The drainage authority issued a final or der establishing an improvement for the
upstream section of CD 24 on March 20, 2018.
Expert declaration
In February 2019, the ISG engineer filed a declaration stating that, “[u]ltimately the
drainage authority elected to repair only the downstream portion of the system which runs
through Carlson[’s] and other downstream la ndowners[s’] properties, pending a decision
whether to approve an improvement petition.”
The ISG engineer also explained that Carlson had activel y participated in
discussions regarding the implementation and design of the repairs:

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[Carlson] examined the proposed plans, attended the proposed
repair hearings, met with st aff, met with myself onsite,
attended the preconstruction meeting, and requested
modifications.

. . . .

I proposed a 36-inch rate control structure as the best solution.
That would have been adequate and well within acceptable
design standards. It would not have materially impacted Mr.
Carlson’s ability to drain his lands, due to the elevation of the
overflow structure which was set by design 1 foot lower than
any agricultural land to prevent flooding to back up from the
structure. However, Mr. Carlson complained vehemently, and
we upsized the structure to 42 inches, which is certainly
adequate to provide Mr. Carlson the same level of agricultural
drainage as he had before the repair, by increasing the capacity
at the bottom of the storage area while maintaining an overflow
well below Mr. Carlson’s property for high flow events.

Carlson’s appeal of the improvement order
Carlson appealed the final improvement or der in district court under Minn. Stat.
§ 103E.095, but he did not appeal the benef its and damages determined for the upstream
improvement under Minn. Stat. § 103E.091. Although section 103E.095 allows a
landowner to present new evidence, Carlson produced no further evid ence as to whether
the proposed improvement, fo llowing the completed repair, would cause flooding to the
upstream portion of CD 24. The parties argued the appeal through written briefs due to the
COVID-19 pandemic. Based on the administra tive record and the pa rties’ briefs, the
district court judge issued an order affirming the drainage authority’s order approving the
improvement. The district court explained:
In the record, there is a Petition for an Improvement dated June
17, 2016, and a Petition for a Repair dated June 4, 2013. There
are two Orders: An Order for an Improvement dated March 20,

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2018, and an Order for a Repair dated June 27, 2016. . . . Both
projects involve the drainage of CD (County Ditch) 24 and are
related in that way. Howeve r, the Court did not see any
statutory authority to suggest that two construction projects for
the same drainage system nece ssarily need to be combined
where there are two separate petitions. . . . Plaintiff waived any
issues with the Drainage Au thority’s Order, other than
procedural ones. A dditionally, Plainti ff did not provide
evidence of any defect with th e engineering report or with a
damage evaluation.

Carlson appeals.

DECISION
I. The district court did not err by affirming the drainage authority’s
improvement order for the upstream po rtion of CD 24 that relied on the
baseline conditions of the 2016 repair inst ead of the baseline conditions of the
1959 improvement.

Under Minn. Stat. § 103E.095, subd. 1 (2020), a party may appeal an order
establishing a drainage project to the dist rict court. Although under Minn. Stat.
§ 103E.095, subd. 2 (2020), the findings made by the drainage authority are prima facie
evidence of the matters stated in the findings, and the order is prima facie reasonable,
appeals to the district court are de novo. Schwermann v. Reinhart , 210 N.W.2d 33, 36
(Minn. 1973). The district c ourt shall affirm an appealed order if it is “lawful and
reasonable,” but should not affirm the order if it is “arbitrary, unlawfu l, or not supported
by the evidence.” Minn. Stat. § 103E.095, subd. 2.
On appeals of drainage orders to this cour t, we review the district court’s factual
determinations under a “clearly erroneous” standard of review and its legal conclusions de
novo, meaning that we are “not bound by the legal conclusions of the district court or the
agency itself.” Improvement of Cty. Ditch No. 86, Branch 1, Cty. of Blue Earth v. Phillips,

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614 N.W.2d 756, 760 (Minn. App. 2000), rev’d on other grounds, 625 N.W.2d 813 (Minn.
2001). Statutory construction is a question of law, which we review de novo. Id.
A. The district court did not err by determining that the drainage authority’s
order to repair the downstream portion of CD 24 and its order to improve
the upstream portion of CD 24 did not need to be combined.

Under the drainage code, ditch system repairs are undertaken “to restore all or part
of a drainage system as nearly as practicable to the same hydraulic capacity as originally
constructed and subsequently improved, in cluding resloping of ditc hes and leveling of
spoil banks if necessary to prevent further deterioration, ” realignment to original
construction, and routine operations to remove obstructions. Minn. Stat. § 103E.701, subd.
1 (2020). Improvements, in contrast, are undertaken to tile, enlarge, extend, straighten, or
deepen an established and constructed draina ge system. Minn. Stat. § 103E.215, subd. 2
(2020).
On appeal of the final improvement orde r in district court under Minn. Stat.
§ 103E.095, Carlson indicated that he was “narrowing his claim to only appeal a procedural
defect and not the substance” of the final improvement order. Specifically, Carlson appears
to have argued to the distri ct court that the 2016 repair order and the 2018 improvement
order should have been combined as they e ssentially involved the same project and their
bifurcation was not legally authorized. However, the district court denied Carlson’s appeal,
concluding that the law did not require th e drainage authority to combine the two
proceedings.
Carlson now argues that the district cour t erred by determining that the drainage
authority lawfully divided work on CD 24 into the 2016 repair order and the 2018

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improvement order. He contends that this bi furcation violates precedent established in
Oelke v. Faribault Cty., where the Minnesota Supreme Cour t explained that each distinct
type of drainage proceeding has its “own statutory prerequisites for obtaining jurisdiction,
and for obvious reasons, one proceeding may not be ordere d under a petition for another
type of work.” 70 N.W.2d 853, 860 (Minn. 1955).
Appellant’s argument appears to be another attempt to advance hi s theory that his
land was damaged by the downstream repair work, and that the drainage authority avoided
compensating him by proceedin g under repair statutes, which, unlike improvement
provisions, do not allow for payment of damages. 3 Carlson makes two arguments based
on this damages theory. First, he argues that the drainage authority’s 2016 repair order
violated the statutory requirements for a repa ir proceeding by incl uding an order for the
construction of water control structures, which are not included in the statutory definition
of “repair” under Minn. Stat. § 103E.701, su bd. 1. Second, Carlson contends that the
drainage authority’s 2018 improvement order violated the statutory requirements for an
improvement proceeding by omitting the construction of the water control structures in its
damages assessment, even though the control structures had already been constructed.
We agree with the district court that there is no “statutory authority to suggest that
two construction projects for the same drainage system necessa rily need to be combined
where there are two separate petitions.” Additionally, because Carlson missed the 30-day

3 Appellant is incorrect that damages are not payable in connection with ditch repairs. See
Minn. Stat. § 103E.715, subd. 6(b) (2020) (stating that da mages are payable for repairs
under Minn. Stat. § 103E.315 (2020)).

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deadline to appeal the 2016 repair order to the district court under Minn. Stat. §§ 103E.091,
subd. 2(b), .095, subd. 1 (2020), the district court was without jurisdiction to hear any
substantive, factual arguments related to the 2016 repair order. Bongard v. Bongard, 342
N.W.2d 156, 158 (Minn. App. 1983) (“Time limits on appeals are jurisdictional.”) Because
of this, and because appellate courts generally will not consider issues raised for the first
time on appeal, Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988), we decline to address
Carlson’s argument that the drainage authority’ s 2016 repair order violated the statutory
requirements for a repair proceeding.
Finally, Carlson did not appe al the benefits and damage s determined for the 2018
upstream improvement, appealing only the establishment of the drainage system
improvement under Minn. Stat. § 103E.095. Additionally, he cites no authority to support
his argument that omitting an already-completed construction project in the damages
assessment of an improvement order is in violation of any drainage code statute. And, he
identifies no work ordered und er the 2018 improvement order that did not meet the
definition of an improvement un der Minn. Stat. § 103E.215, su bd. 2. Therefore, we are
unable to detect any viol ation of the precept in Oelke that “one procee ding may not be
ordered under a petition for another type of work.” 70 N.W.2d at 860.
In sum, we are unaware of any statutor y authority that would have required the
drainage authority to combin e the 2016 repair proceeding and the 2018 improvement
proceeding. We therefore conclude that the district court did not err by determining that
the proceeding to repair the downstream portion of CD 24 and the proceeding to improve
the upstream portion of CD 24 did not need to be combined.

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B. We have no basis to conclude that the district court erroneously disregarded
Carlson’s vested property rights by affirming the drainage authority’s 2018
improvement order.

Even if the district court did err by separately issuing the 2016 repair order and the
2018 improvement order—which it did not—there is no evidence in the record to support
a conclusion that the district court erroneously disregarded Carlson’s vested property rights
by affirming the drainage authority’s 2018 improvement order.
It is axiomatic that owners of land damaged or benefitted by a drainage system have
“a property right in the maintenance of a ditch in the same condition as it was when
originally established.” Petition of Jacobson, 48 N.W.2d 441, 444 (Minn. 1951). “Such a
property right cannot be divested or damaged without due process of law.” Id.; see also
Minn. Stat. § 103D.521 (2020) (“A person may not be deprived or divested . . . of a
previously established beneficial use or right without due process of law.”).
Here, Carlson argues that by affirming the drainage authority’s 2018 improvement
order the district court erroneously ignored his vested rights in the maintenance of CD 24
in its 1959 condition. Specifically, he argues that the drainage authority violated his right
to the beneficial use of his property under Minn. Stat. § 103D.521 when it issued the 2018
improvement order that incorporated the baseline conditions existing after the 2016 repair
instead of the baseline conditions existing at the time of the 1959 improvement. Carlson
contends that the final engineering report, viewers’ report, and property owners’ report for
the 2018 improvement are also “materially erroneous” because th ey, too, relied on the
baseline conditions following the 2016 repair. Carlson’s arguments are predicated on his
implicit claim that the 2018 im provements will cause CD 24 to dispose of surface waters

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from his farm less efficiently than the 1959 version of CD 24 would have done, ultimately
causing flooding to his farm. This flooding, Carlson argues, would constitute a taking for
which he should be compen sated based on his vested rights arising from the 1959
improvement. To state his argument another way, Carlson appears to argue that “[t]he
drainage authority is limited to flooding” hi s property only to the level occurring at the
time of the 1959 improvement and that “compensation shall be determined as of the time
of the taking” for any flooding occurring beyond that level.
The drainage authority does not dispute th at Carlson’s vested property rights were
established when CD 24 was improved with th e construction of the open ditch in 1959.
Nor does it dispute Carlson’s right to the maintenance of CD 24 according to its condition
in 1959 or his right to compensation for any taking of his property. However, the drainage
authority argues that the 2018 improvement order in no way affected Carlson’s property
rights because there is no evidence in the record that the 2018 improvement would reduce
the drainage efficiency supplied by CD 24 as it existed following the 1959 improvement.
The evidence in the record supports the draina ge authority’s argument and
contradicts Carlson’s argument. In her advisory letter presented at the preliminary hearing,
the Sambatek engineer wrote that she lacked data sufficient to determine whether the 2018
improvement would cause any adverse impact. And although Carlson disclosed that a non-
engineer technician would testify that th e improvement was improperly designed and
would flood Carlson’s property, Carlson omitted him from the witness list, and that witness
did not testify. Further, the ISG engineer opined that Carlson wo uld receive the same
drainage after the improvement as he received under the 1959 order:

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The outlet structure is designed to hold back water in the ditch,
but does not back up to affect any crop land in the system. The
structure affects the elevation of the water in the ditch near it,
but by the time you get upstream to the Carlson land there is
little effect on the elevation due to the structure.

. . . .

Mr. Carlson did not object to th e configuration of this outlet
prior to, or at the final repair hearing. There was no occasion
to refer the repair to viewers for damage determination,
because there were no dama ges to determine. That
determination would have required an engineering opinion that
the outlet would cause material flooding to Mr. Carlson, and it
was, and still is, my opinion that no such damage would occur.

Finally, the statutory definition of a repa ir in Minn. Stat. § 103E.701, subd. 1,
undermines Carlson’s argument. Under subdivision 1, ditch system repairs are undertaken
“to restore all or part of a drainage system as nearly as practicable to the same hydraulic
capacity as originally constructed and su bsequently improved.” Assuming that the
construction of the 2016 repairs met this definition by restoring the downstream portion of
CD 24 to its 1959 hydraulic capacity—an a ssumption that Carlson neither disputes nor
disproves—then we can conclude that the baseline conditions of the 2016 repair were
identical to the baseline cond itions of the 1959 improvement. Based on this reasoning,
whether the drainage authority’s 2018 improvement order relied on the baseline conditions
of the 2016 repair or those of the 1959 improvement becomes irrelevant.
In sum, because there is no evidence in the r ecord supporting Carlson’s argument
that the drainage efficiency of CD 24 would be less efficient after the 2018 improvement
than it was at the time of the 1959 improvement, there is no basis to conclude that the

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district court erroneously disregarded Carls on’s vested property rights by affirming the
drainage authority’s 2018 improvement order.
C. Carlson’s challenges to the repair order are time-barred.

Carlson next argues that the 2016 repair order is subject to collateral attacks because
its construction was legally un authorized under Minn. Stat. § 103E.701, subd. 1, which
defines “repair.” Specifically, he argues that the drainage authority unlawfully included
“$200,000 of construction improvements in a repair order when it ha[d] no authority to do
so.” As already explained above, Carlson failed to appeal the 2016 repair order within the
30-day statutory deadline. Minn. Stat. §§ 103E.091(2)(b ), .095(1). Because Carlson
missed that deadline, the dist rict court was without jurisdic tion to hear any substantive,
factual arguments related to the 2016 repair order. Bongard, 342 N.W.2d at 158. Because
of this, and because appellate courts generally will not consider issues raised for the first
time on appeal, Thiele, 425 N.W.2d at 582, we decline to address Carlson’s arguments on
this issue.
Affirmed.