Chicago Central & Pacific Railroad Company v. Calhoun County Board of Supervisors, Acting as Trustee for the Drainage District No. 86 , 2012 Iowa Sup. LEXIS 74 ( 2012 )


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  •               IN THE SUPREME COURT OF IOWA
    No. 10–0061
    Filed June 29, 2012
    CHICAGO CENTRAL & PACIFIC
    RAILROAD COMPANY,
    Appellant,
    vs.
    CALHOUN COUNTY BOARD OF
    SUPERVISORS, Acting as Trustee
    for the DRAINAGE DISTRICT NO. 86,
    Appellee.
    On review from the Iowa Court of Appeals.
    Appeal from the Iowa District Court for Calhoun County, Gary L.
    McMinimee, Judge.
    Appellant seeks further review of a court of appeals decision
    affirming the dismissal of appellant’s suit for reimbursement of costs
    associated with the repair of a damaged tile drain under Iowa Code
    chapter 468 (2009).   DECISION OF COURT OF APPEALS VACATED;
    DISTRICT COURT JUDGMENT AFFIRMED, AND CASE REMANDED
    FOR DISMISSAL.
    Ellen J. Krug of Krug Law Firm, P.L.C., Minneapolis, for appellant.
    2
    James     L.   Kramer   of   Johnson,   Kramer,   Good,   Mulholland,
    Cochrane & Driscoll, P.L.C., Fort Dodge and David Wollenzien, Manson,
    for appellee.
    3
    ZAGER, Justice.
    Chicago Central and Pacific Railroad Company (CCP) seeks further
    review from a court of appeals decision affirming the district court’s
    judgment in favor of the Calhoun County Board of Supervisors, acting as
    trustee for Drainage District No. 86, and dismissal of CCP’s petition.
    This case presents two issues. The first is whether Iowa’s drainage laws
    permit a private party to voluntarily perform repairs on a drainage
    improvement, request reimbursement for those repairs, and then file a
    petition with the district court when the request for reimbursement is
    denied. If we determine that Iowa law permits such a suit, we must then
    determine whether CCP or the Board is responsible for repairing or
    replacing underground drainage improvements at the location where
    those improvements intersect with CCP’s right-of-way.        Because we
    determine that Iowa law does not permit actions for reimbursement of
    money voluntarily spent by a private party to repair a drainage
    improvement, we need not decide the second issue.        Accordingly, we
    affirm the district court’s judgment in favor of the Board and the
    dismissal of CCP’s petition.
    I. Factual Background and Procedural History.
    The section of railroad track that forms the basis of this dispute
    was built between 1869 and 1870. Drainage District No. 86 was formed
    in 1908, and the Calhoun County Board of Supervisors is, by statute,
    responsible for keeping any drainage district improvements in repair.
    The tile line that intersects the railroad track was built by the drainage
    district in 1908. In May of 2008, CCP discovered a sinkhole on the edge
    of the tracks and reported the problem to the drainage district
    watchman.     The clay tiles that made up the drain had collapsed.
    Crushed rock, which made up the ballast that supported the railroad
    4
    bed, was sucked into the tile drain, creating the hole. In response to this
    discovery, CCP slowed its trains to ten miles per hour over the affected
    area and made a temporary repair by filling the hole with crushed rock.
    On May 8, the drainage district watchman inspected the location
    and found that the hole had been filled with crushed rock. The next day,
    a CCP technical service engineer contacted the district watchman and
    requested the Board repair the collapsed tile by replacing it with a one-
    quarter-inch-thick steel pipe. The CCP engineer testified that he and the
    district watchman originally “had a deal struck . . . to work together and
    get the tile repaired,” but that deal was later called off. On May 20, a
    drainage engineer sent a letter to the CCP engineer on behalf of the
    drainage district.      This letter stated that under Iowa Code section
    468.111, CCP was responsible for any repairs that needed to be made to
    the crossing. 1 The letter also stated,
    [W]ith this letter we are reporting this situation to the
    Calhoun County Board of Supervisors, acting as Trustees for
    the Drainage District No. 86. On behalf of the District we
    are requesting the CC&P Railroad Company report their plan
    for repairing the railroad and notify the board and [the
    district watchman] of the time frame for completing the
    repair.
    The letter went on to tell CCP that the district watchman would “be made
    available to assist [CCP] in exploring the failure of the pipe under the
    railroad right-of-way” and that the district would have to inspect the
    reconnections before the completion of the repairs.                 The drainage
    engineer also testified that he told the district watchman that the district
    1Section 468.111 requires railroads to pay for the repairs of “any culvert or
    bridge” at locations where railroad rights-of-way intersect with drainage district
    improvements and the intersection occurs at a natural waterway or a place provided by
    the railroad. Iowa Code § 468.111 (2009).
    5
    did not have the right to enter the railroad’s right-of-way and that it was
    the responsibility of the railroad to repair the damaged tile drain.
    On August 8, CCP sent a letter to the Board, informing it that CCP
    had undertaken repairs to the tile drain and seeking reimbursement. To
    repair the tile drain, CCP paid Wieston Ag Service, Inc., $11,003.28 to
    clear the collapsed tile drain, insert a one-quarter-inch-thick, forty-foot-
    long steel casing under the railroad’s right-of-way, run new tile lines
    through the steel casing and reconnect the new tile line to the existing
    line on either side of the right-of-way. In addition to the $11,003.28 in
    repair costs, CCP’s notice of claim also sought $4888.36 in “train delay
    costs” that CCP incurred as a result of having to slow down its trains
    near the collapsed tile drain.
    On November 25, the Board denied the claim. On December 18,
    CCP sent a notice of appeal to the Calhoun County Auditor. The notice
    cited Iowa Code section 468.84 and, pursuant to that section, designated
    the Calhoun County District Court as the forum court for the appeal. On
    December 30, CCP filed its petition pursuant to section 468.86 in
    Calhoun County.
    The Board filed an answer on January 15, 2009, admitting CCP
    made the repairs, but asserting CCP was responsible for the costs of
    such repairs.    CCP moved for summary judgment on June 23.             On
    August 24, the Board resisted and filed a cross-motion for summary
    judgment, claiming that it was immune from the suit and, in the
    alternative, that CCP bore responsibility for the repairs.
    On September 29, the district court conducted a hearing including
    testimony from four witnesses and a stipulation of facts. On December
    14, 2009, the district court issued its ruling dismissing CCP’s petition
    and entering judgment in favor of the Board.            The district court
    6
    acknowledged the Board’s immunity claim but did not rule on it.
    Instead, the court construed the word “culvert,” as that term is used in
    section 468.111, to include an underground tile drain where it
    intersected a railroad track. The district court also concluded that the
    intersection point occurred in a natural waterway, and therefore, under
    section 468.111, CCP was liable for the costs of repair. CCP timely filed
    a notice of appeal on January 11, 2010.            On appeal, the Board
    responded to the statutory construction claim and also raised the
    immunity issue. The court of appeals did not reach the immunity claim,
    but affirmed the district court’s rulings that section 468.111 applied,
    that the intersection of the tile drain and the railroad was a culvert for
    purposes of that section, and that CCP was responsible for repairs to the
    culvert. CCP petitioned for further review, which we granted.
    II. Standard of Review.
    This case was originally tried as an appeal pursuant to Iowa Code
    section 468.83 (2009). Appeals brought under section 468.83 are tried
    in equity unless the appeal is from Board action fixing the amount of
    compensation for the taking of land for a right-of-way or “the amount of
    damages to which any claimant is entitled.” Iowa Code § 468.91. This
    dispute does not concern the amount of damages CCP is entitled to;
    rather, the issue is whether CCP is entitled to recover damages at all.
    Therefore, the action must be tried in equity under section 468.91. The
    parties also stipulated that this action should be tried in equity.   Our
    review of equitable proceedings is de novo. See Voogd v. Joint Drainage
    Dist. No. 3-11, 
    188 N.W.2d 387
    , 388 (Iowa 1971).
    However, this case also requires us to determine whether chapter
    468 of the Iowa Code allows CCP to file a suit against the Board for
    money CCP voluntarily spent to repair a drainage improvement.
    7
    Specifically, we must determine whether section 468.83 is applicable to
    this dispute.    Resolution of these disputes turns on questions of
    statutory   construction,   and   we     “review   questions   of   statutory
    construction for correction of errors at law. Consequently, our review is
    for correction of errors at law.” Estate of Ryan v. Heritage Trails Assocs.,
    Inc., 
    745 N.W.2d 724
    , 728 (Iowa 2008) (citation omitted).
    III. Statutory Framework.
    Article I, section 18 of the Iowa Constitution allows the legislature
    to
    provide for the organization of drainage districts, vest the
    proper authorities with power to construct and maintain
    levees, drains and ditches and to keep in repair all drains,
    ditches, and levees heretofore constructed under the laws of
    the state, by special assessments upon the property
    benefited thereby.
    Iowa Const. art. I, § 18.   Chapter 468 of the Iowa Code contains the
    multitude of provisions that govern the creation, operation, and funding
    of drainage districts.   Section 468.2 declares that “[t]he drainage of
    surface waters from agricultural lands and all other lands or the
    protection of such lands from overflow shall be presumed to be a public
    benefit and conducive to the public health, convenience, and welfare.”
    Iowa Code § 468.2(1). A county board of supervisors has the authority to
    establish a drainage district when it is “conducive to the public health,
    convenience or welfare.” Id. § 468.1.
    The following passage provides a general overview of drainage
    districts in Iowa:
    A drainage district is an area of land, set out by legal
    proceedings, which is subject to assessment for drainage
    improvements within the area. Its affairs are managed by
    the county board of supervisors in a representative capacity.
    Once the district’s original construction has been completed
    and paid for, the district may be placed under the
    management of a board of trustees.
    8
    A drainage district may be formed on the petition of
    two or more owners of land within the proposed district. The
    board of supervisors has the authority to establish a
    drainage district if it finds that establishment of the district
    would benefit the public welfare.
    The board of supervisors has the power to buy, lease,
    or condemn land on behalf of the drainage district. The
    board awards contracts for construction of drainage
    improvements to be made within the district. Drainage
    improvements include such things as ditches, drains, levees,
    and settling basins.
    Fisher v. Dallas County, 
    369 N.W.2d 426
    , 428 (Iowa 1985) (citations
    omitted).
    Two or more landowners may petition the county auditor for the
    establishment of a drainage district. Iowa Code § 468.6. The board of
    supervisors then appoints an engineer who must survey the land to be
    contained in the proposed district and file a report with the board
    proposing a plan for the district.         Id. §§ 468.10–.12.   If the board
    approves the engineer’s plan and report, then the board must set a
    hearing date for the petition and the auditor must notify each landowner
    within the proposed district. Id. § 468.14. The notice must, among other
    things, inform landowners in the proposed district
    that all claims for damages except claims for land required
    for right-of-way, and all objections to the establishment of
    said district for any reason must be made in writing and filed
    in the office of the auditor at or before the time set for such
    hearing.
    Id.
    At    the   hearing,   the   board    must   determine    whether   the
    construction of the proposed drainage improvement will materially
    benefit the land in the proposed district and be “conducive to the public
    health, convenience, or welfare.” See id. § 468.21–.22. The board must
    consider the costs of construction of the improvement as
    shown by the reports of the engineer and the amount of
    9
    damages and compensation awarded to all claimants, and if
    . . . it finds that the cost and expense is not a greater burden
    than should be justly borne by the land benefited by the
    improvement, it shall finally and permanently locate and
    establish the district and improvement.
    Id. § 468.27.   Once a drainage district is established, it acquires a
    permanent easement for purposes of constructing and maintaining the
    drainage improvement. Id.
    Chapter 468 also lays out a funding mechanism for the
    construction of drainage improvements across the district’s newly
    acquired easements and lands:
    The cost of establishing a drainage district and constructing
    and maintaining its drainage lines and other improvements
    is defrayed by assessing the landowners within the district in
    proportion to the benefit that accrues to each owner’s land
    from the establishment and maintenance of the district. The
    board of supervisors on behalf of the district may also issue
    bonds, payable only out of money raised by future
    assessments, for the purpose of meeting the expenses of
    establishing or maintaining a drainage district. The board,
    however, has no power to impose a general tax for the benefit
    of a drainage district.
    Fisher, 369 N.W.2d at 428–29 (citations omitted).      Drainage and levee
    taxes are levied and collected by the county treasurer and kept in a
    separate fund. Iowa Code § 468.528. The treasurer may only disburse
    the money on “the orders of [the board of] trustees, signed by the
    president of the board, upon which warrants shall be drawn by the
    auditor upon the treasurer.” Id.
    Once a drainage improvement has been constructed, drainage
    districts have “a positive mandate to keep the drainage system in such
    condition that it will function properly and perform the service for which
    it was intended.”   Wise v. Bd. of Supervisors, 
    242 Iowa 870
    , 873, 
    48 N.W.2d 247
    , 248 (1951); see also Iowa Code § 468.126(1). However, the
    Code gives the board a number of different ways to repair, restore or
    10
    maintain the drainage improvement.           See Iowa Code § 468.126.
    Depending on the extent of the repair, the board may be required to
    provide landowners in the district with notice and a hearing.            Id.
    § 468.126(1)(c).
    The costs of repairs or new improvements must be paid from the
    funds of the drainage district. Id. § 468.127. If there are insufficient
    funds on hand, “the board within two years shall levy an assessment
    sufficient to pay the outstanding indebtedness and leave the balance
    which the board determines is desirable as a sinking fund to pay
    maintenance and repair expenses.” Id.; see also id. § 468.61. Thus, any
    repair to the drainage improvement will ultimately be paid for solely by
    assessing the property located in the district.
    Drainage district improvements must necessarily cross railroad
    rights-of-way.     Sections 468.109 to 468.113 address how the cost of
    these intersections will be allocated between the district and the railroad.
    Iowa Code §§ 468.109–.113; Chi. & Nw. Transp. Co. v. Webster Cnty. Bd.
    of Supervisors, 
    880 F. Supp. 1290
    , 1295–96 (N.D. Iowa), aff’d, 
    71 F.3d 265
     (8th Cir. 1995). When a proposed improvement crosses a right-of-
    way, section 468.109 requires the board to serve notice on the railroad,
    indicating the nature and location of the improvement and the plans for
    how the improvement will cross the right-of-way. Iowa Code § 468.109;
    Chi. & Nw. Transp. Co., 880 F. Supp. at 1295. The railroad company is
    then directed
    to construct such improvement according to said plans and
    specifications at the place designated, across its right of way,
    and to build and construct or rebuild and reconstruct the
    necessary culvert or bridge where any ditch, drain, or
    watercourse crosses its right of way, so as not to obstruct,
    impede, or interfere with the free flow of the water therein,
    within thirty days from the time of the service of such notice
    upon it.
    11
    Iowa Code § 468.109.
    Should the railroad fail to construct the culvert or bridge within
    thirty days, the board may construct the intersection itself and collect
    the costs, including any necessary attorney’s fees, from the railroad in
    the appropriate district court. Id. § 468.112. If the culvert or bridge that
    is needed at the intersection is located at a natural waterway or a place
    provided by the railroad for the flow of water, then the cost of the bridge
    or culvert must be borne by the railroad without reimbursement from the
    drainage district. Id. § 468.111. However, if the culvert or bridge is not
    at a natural watercourse or place chosen by the railroad for the flow of
    water, then the railroad must be reimbursed for the cost of the
    construction ordered by the district in the notice provided in section
    468.109. See Chi., Rock Island & Pac. Ry. v. Bd. of Supervisors, 
    196 Iowa 370
    , 372, 
    194 N.W. 266
    , 267 (1923).
    With this statutory framework in mind, we now address the
    parties’ arguments in this case.
    IV. Whether a Private Party Can Bring a Suit Against a
    Drainage District for Reimbursement of Money Spent Repairing the
    Intersection of a Drainage Improvement and a Railway.
    The Board claims that Iowa law does not allow a suit against a
    drainage district for money damages. The Board also claims that if CCP
    felt the Board was not performing its statutory duty to repair its drainage
    improvements, the proper remedy was to file a mandamus action to
    compel the Board to properly maintain the drainage improvement, not to
    simply repair the collapsed area under the railroad’s right-of-way and
    then file a suit for reimbursement.       CCP claims that this was an
    emergency situation and that the appeals provision found in section
    468.83 authorizes CCP to seek reimbursement from the Board in the
    district court.
    12
    A. Error Preservation.         As a preliminary matter, we must first
    determine whether the statutory immunity issue is properly before us.
    CCP moved for summary judgment on June 23, 2009.                           The Board
    resisted and moved for summary judgment in its favor on August 24,
    2009.    The Board’s brief supporting its motion for summary judgment
    argued that the drainage district was immune from CCP’s suit for
    damages because there is no provision of Iowa law “that authorizes or
    creates a cause of action in favor of a railroad against the trustees of the
    drainage district to recover the railroad’s expense in repairing its
    culvert.” In a reply brief, CCP “concede[d] that [it] could have sought a
    mandamus, [but] the problem here was timeliness.” 2 The issue was also
    discussed at the hearing, and the district court acknowledged the
    Board’s immunity claim in its December 14 ruling. Although the district
    court ultimately found for the Board and dismissed CCP’s petition, it did
    not rule on the Board’s immunity claim. The Board also briefed the issue
    on appeal, and CCP addressed the issue in its reply brief.
    “[W]e will affirm a trial court on any basis appearing in the record
    and urged by the prevailing party.” In re Estate of Voss, 
    553 N.W.2d 878
    ,
    879 n.1 (Iowa 1996).         Because the Board raised the issue before the
    2CCP  also claimed that the Board did not raise the issue of immunity at the
    hearing or in the answer to CCP’s petition and that “[t]he failure to assert the defense
    should be sufficient to reject the defense.” Under Iowa Rule of Civil Procedure 1.421(1),
    certain defenses may be raised by pre-answer motion, and if a filed pre-answer motion
    does not contain those defenses, the defenses will be deemed waived. Iowa R. Civ. P.
    1.421(1), (4). The Board did not file a pre-answer motion and chose to raise the
    immunity defense in its motion for summary judgment.
    The use of the word “may” [in rule 1.421(1)] indicates that raising such
    defenses in a pre-answer motion is permissive, and as such, the pleader
    may choose to raise the defense in a pre-answer motion, a responsive
    pleading, or in some other manner such as a motion for summary
    judgment.
    Antolik v. McMahon, 
    744 N.W.2d 82
    , 83–84 (Iowa 2007). Accordingly, the issue is not
    waived.
    13
    district court, prevailed in that court on another ground, and raised the
    issue on appeal as an alternative ground for affirming the district court’s
    dismissal of CCP’s petition, error has been preserved, and the issue is
    properly before this court. See id.
    B. Whether Mandamus is the Proper Remedy. Once a drainage
    improvement has been constructed, the board, acting as trustee for the
    drainage district, has a duty to “keep the improvement in repair.” Iowa
    Code § 468.126(1). “[K]eeping a drainage ditch in repair [is] a mandatory
    statutory duty of the Board of Supervisors . . . .” Welch v. Borland, 
    246 Iowa 119
    , 121, 
    66 N.W.2d 866
    , 868 (1954). If the board fails to perform
    the required repairs, then a mandamus action is the appropriate remedy
    for a complaining party. 3 See Voogd, 188 N.W.2d at 391 (“A drain once
    completed is under the supervision of the supervisors, and they can be
    compelled by mandamus to maintain it and keep it in repair.”); Welch,
    246 Iowa at 121–22, 66 N.W.2d at 868; see also Wise, 242 Iowa at 874–
    75, 48 N.W.2d at 249. Following a successful mandamus action, “[t]he
    board is merely ordered to repair the drainage improvements.                      The
    manner in which it proceeds to do this is within its sound and honest
    discretion.” Wise, 242 Iowa at 875, 48 N.W.2d at 249. We have also
    held that a board’s refusal to repair a drainage improvement is a refusal
    to act rather than an affirmative action.            Id.   Therefore, the appeal
    provisions contained in sections 468.83 and 468.96 are not applicable in
    3According   to the Iowa Code,
    The action of mandamus is one brought to obtain an order
    commanding an inferior tribunal, board, corporation, or person to do or
    not to do an act, the performance or omission of which the law enjoins as
    a duty resulting from an office, trust, or station.
    Iowa Code § 661.1.
    14
    such a situation and mandamus is the appropriate remedy. 4 Id. at 874–
    75, 48 N.W.2d at 249; see also Welch, 246 Iowa at 121–23, 66 N.W.2d at
    868–69.
    Our more recent cases have continued to recognize that there are
    “limited circumstances in which a drainage district is subject to suit” and
    that the legislature has “sharply restrict[ed] the circumstances in which
    the affairs of a drainage district are subject to judicial action.” Fisher,
    369 N.W.2d at 429. “Our cases have consistently held that a drainage
    district is not susceptible to suit for money damages. It has no corporate
    existence for that purpose.”       Id.   A drainage district’s immunity is not
    based on the doctrine of sovereign immunity; instead, it flows from the
    fact that a drainage district is an entity with “special and limited powers
    and duties conferred by the Iowa Constitution.” Id. at 430. The special
    and limited powers of a district mean that a drainage district can only be
    sued to compel, complete, or correct the performance of the board or the
    district. Id. at 429 (“Suits have been allowed only to compel, complete, or
    correct the performance of a duty or the exercise of a power by those
    acting on behalf of a drainage district.”); see also Gard v. Little Sioux
    Intercounty Drainage Dist., 
    521 N.W.2d 696
    , 698 (Iowa 1994) (reaffirming
    Fisher).
    As noted above, our previous interpretations of chapter 468
    provide that if a party believes a board of supervisors is not performing
    its statutory duty to keep a drainage improvement in repair, that party’s
    remedy is a mandamus action to compel the board to perform its duty.
    4Wise  refers to various sections of chapter 455 of the Iowa Code. In 1989, the
    legislature reorganized the provisions on drainage law and moved chapter 455 to
    chapter 468. 1989 Iowa Acts ch. 126, § 2(2). However, the substance of the appeal
    provisions was not changed. Compare Iowa Code §§ 455.92, .106 (1987), with Iowa
    Code §§ 468.83(1), .96 (2009).
    15
    We have recognized this remedy for over sixty years. Wise, 242 Iowa at
    874–75, 48 N.W.2d at 249.      The legislature has not responded to our
    interpretation of this aspect of the drainage district statutes, indicating
    its tacit acceptance of mandamus as the appropriate remedy for board
    inaction. See Gard, 521 N.W.2d at 698 (“Under similar circumstances we
    have invoked the principle that issues of statutory interpretation settled
    by the court and not disturbed by the legislature have become tacitly
    accepted by the legislature.”). We see no reason to abandon our previous
    holdings that, in situations such as the one before us, mandamus is the
    proper remedy. If the mandamus action is successful and a court orders
    the board to make repairs, how the board chooses to make the repairs is
    “within its sound and honest discretion.” Wise, 242 Iowa at 875, 48
    N.W.2d at 249. A mandamus action ensures that the board will perform
    its duty to maintain drainage improvements; at the same time, it
    respects the board’s wide discretion regarding the exact manner and
    nature of the repair to be undertaken.        See Iowa Code § 468.126
    (providing a board several options and procedures for repairing and
    reconstructing drainage improvements).
    Before the district court and at oral argument, CCP acknowledged
    that mandamus was a possible route it could have taken to compel the
    Board to repair the damage to the drainage improvement. However, CCP
    claims that a mandamus action would have been untimely, impractical,
    and prejudicial to CCP.     According to CCP, “the repairs had to be
    undertaken immediately—this is a railroad moving freight after all.”
    The emergency nature of the repair performed by CCP was
    discussed at the hearing.     CCP’s attorney questioned the railroad’s
    technical service engineer about the impact of delaying the repair:
    16
    Q. . . . [W]hat was the time period from when the
    problem was first discovered until when it was fixed? A. It
    was approximately two months.
    Q. All right. A. If memory serves me about 56 days.
    Q. And because this is the railroad’s main line, could
    the railroad have waited months in order to have it fixed? A.
    Oh, no, no, as a matter of fact, we affected temporary repairs
    and we tried to go in and make the repairs, but this was in
    May and if you remember correctly in May of 2008, the
    monsoons began here in Iowa, so we—we basically couldn’t
    actually get the contractor to do the work until things dried
    up. It wouldn’t have been safe for him to try it.
    Q. But if you had waited months to make the repairs,
    how would it have impacted the railroad? A. Well, we dealt
    with the ten mile an hour slow-over during that period of
    time.
    Q. What does slow-over mean? A. We have to slow
    our trains down, it obviously takes more time and fuel
    consumption to do that because we have to start and stop.
    Q. So over this section of track, they could only go ten
    miles an hour? A. That’s correct.
    Q. What is the speed limit of that track? A. The
    normal speed limit over that track is either 40 or 50 miles
    per hour, I don’t remember right exactly.
    Q.     And would this have been considered             an
    emergency for the railroad? A. Oh, yeah, yeah.
    In the event of an emergency, the railroad argues it is free to make
    whatever repairs it desires and then force the drainage district to pay for
    those repairs.     CCP has not provided any cases or statutes which
    support the idea that a mandamus action is the appropriate remedy
    when the board refuses to make repairs, unless a railroad is responding
    to an emergency.
    The lack of authority for CCP’s position is not surprising because
    the statute is simply not set up this way. The board is responsible for
    seeing that repairs are made. Iowa Code § 468.126. When a drainage
    improvement crossing the railroad’s right-of-way needs to be rebuilt or
    17
    reconstructed, the board is responsible for drawing up plans for the
    rebuilding or reconstruction of the improvement and serving those plans
    on the railroad. Id. § 468.109. The railroad then has a duty to “build or
    rebuild the necessary culvert or bridge.” Id. § 468.110. If the railroad
    refuses,   the   board   “shall   provide   for   the   construction   of   the
    improvement” and may file suit against the railroad to collect the cost.
    Id. § 468.112.    There is no corresponding provision that allows the
    process to work in reverse, where the railroad determines how the repair
    or reconstruction should be constructed, makes the repair, and then files
    suit against the board or the district for reimbursement. The legislature
    has not created such a provision, and we are bound by that choice.
    Moreover, the facts of this case do not support the creation of an
    exception to our general rule requiring a mandamus action to compel the
    Board to make repairs. CCP was able to continue using the track after it
    made a temporary repair by filling the collapsed tile with crushed rock.
    Once the temporary repair was in place, CCP did not stop running trains
    over the affected area, but instead slowed them to ten miles per hour.
    This may have been inconvenient and increased CCP’s fuel costs, but it
    does not rise to the level of an emergency that would convince us to set
    aside well-established precedent and upset the system the legislature
    has established for building and maintaining drainage improvements.
    Additionally, according to CCP’s engineer, heavy rains and wet conditions
    made it impossible to make a permanent repair to the drainage
    improvement for nearly two months. During this time, CCP could have
    filed a mandamus action against the Board to compel it to repair the
    drainage improvement in whatever way the Board saw fit. Instead, CCP
    chose to make the repairs on its own, without direction from the Board,
    and now seeks reimbursement under the same statutory framework that
    18
    it initially chose to sidestep. A mandamus action was the proper course
    of action under the facts of this case.
    C. Whether the Appeals Provision is Applicable to This
    Dispute.   CCP filed its petition with the district court under section
    468.86 and claims section 468.83 is an enabling provision that allows it
    to file suit against the Board. Section 468.83 provides that “[a]ny person
    aggrieved may appeal from any final action of the board in relation to any
    matter involving the person’s rights, to the district court of the county in
    which the proceeding was held.”      Iowa Code § 468.83(1).    CCP filed a
    claim with the Board for reimbursement of the cost to repair the drainage
    improvement and for the increased fuel costs associated with the train
    slow down. The Board denied this claim which, as noted above, was not
    based on any statutory provision cited to this court. CCP claims that the
    language “any matter involving the person’s rights” is broad enough to
    encompass the denial of a claim for reimbursement. We disagree.
    We begin by noting that when a drainage district refuses to make
    repairs, a mandamus action, and not an appeal, is the proper remedy.
    In Wise, the plaintiffs filed an action in mandamus against the board to
    compel the board to clear a drain and ditch. 242 Iowa at 872, 48 N.W.2d
    at 248. The board claimed that the appeal provision barred a mandamus
    action. Id. at 874–75, 48 N.W.2d at 249. We disagreed and noted that
    the “suit was brought to compel the performance of an official duty
    enjoined by law. It was based upon the failure by the board to act rather
    than upon any affirmative action. Hence, the provisions for appeal were
    not applicable.”   Id. at 875, 48 N.W.2d at 249 (emphasis added).       We
    reaffirmed this position three years later, in Welch v. Borland, 
    246 Iowa 119
    , 
    66 N.W.2d 866
     (1954). There, we decided a case where landowners
    brought a mandamus action “asking that an order issue directing [the
    19
    board] to make repairs to the drainage ditch.” Id. at 120–21, 66 N.W.2d
    at 867–68. We held that a mandamus action was a proper remedy for
    the board’s refusal to act. Id. at 123, 66 N.W.2d at 869.
    We do not believe the legislature intended the appeal provision to
    apply to a case such as this one where a railroad voluntarily makes
    repairs and then sues the district for reimbursement.       Section 468.83
    only involves board decisions impacting a person’s rights. Since CCP did
    not follow the statutory framework, it had no right to compensation.
    Drainage district funds can only be spent when authorized by the board.
    Iowa Code § 468.528. Depending on what course of action the board had
    chosen to take to repair or rebuild the drainage improvement at issue in
    this case, it may have been necessary to give notice to landowners and
    hold a hearing. Id. § 468.126. Here, the record does not indicate that
    the Board approved the type of repair CCP made to the drainage
    improvement or the expense incurred in making the repairs. When CCP
    undertook this repair without following proper procedures, it took the
    risk that it might not be compensated for the repair if statutory
    procedures were not followed.     See Voogd, 188 N.W.2d at 393 (“[T]he
    party who enters into a contract with . . . a political subdivision of a
    county does so at the peril that the political subdivision . . . involved has
    not complied with . . . its statutory mandate from the legislature.”).
    CCP’s decision to repair the tile drain without receiving the notice and
    plans required by section 468.109 meant that it had no right to expect
    reimbursement that was not provided for in chapter 468. Simply put,
    CCP’s decision and action was voluntary and was not the result of the
    Board’s actions.
    The history of the appeal provision further convinces us that it was
    not drafted to permit judicial review of the Board’s decision not to
    20
    reimburse those who voluntarily make repairs on their own property.
    The Iowa Code was substantially revised in 1924.                    As part of that
    revision, the legislature amended, revised and codified various provisions
    of Iowa’s drainage law. Iowa Code Revision Bills No. 185 (1923) (codified
    at Iowa Code § 7513 (1924)). The statutory language currently contained
    in section 468.83(1) appeared for the first time in that bill. Compare id.
    § 72, with Iowa Code § 468.83(1) (2009).              According to the notes that
    accompanied the code revision bill, the broad language contained in that
    section “substituted for many provisions scattered throughout the
    present law.” Iowa Code Revision Bills No. 185, § 72, note, at 185-41 to
    185-42. According to the code commissioner, the new appeal provision
    was designed to replace the appeals provisions found in sections 4841,
    4850, 4854 and 4861 of the Code in effect at that time. 5                   Id.   These
    sections all addressed situations where the board was exercising its
    authority to compel some sort of action by a private landowner or the
    board’s attempt to change some aspects of a landowner’s property. See
    Iowa Code §§ 4841, 4850, 4854, 4861 (1919).                  The appeals provision
    5Section 4841 described the process for the assessment of damages when a
    drainage improvement was constructed. Iowa Code § 4841 (1919). It also allowed any
    aggrieved party to “appeal from the finding of the board in establishing or refusing to
    establish the improvement district or from its finding in the allowance of damages.” Id.
    Section 4850 allowed the board to enlarge, deepen or otherwise change a drainage
    improvement after the district was established, but before it was completed, and
    provided for an appeal from the board’s decision to make such a modification. Id.
    § 4850. Section 4854 permitted an appeal “from the order of the board fixing the
    assessment of benefits upon the lands.” Id. § 4854. Section 4861 allowed the drainage
    district to make repairs and levy the costs of those repairs on the land in the district.
    Id. § 4861. If plant roots were obstructing a drainage improvement, section 4861 also
    allowed the board to destroy and remove the plants that are causing the obstruction.
    Id. If the board and the landowner could not agree on the damages for destroying the
    plants, then the board determined the damages owed to the landowner for the
    destruction of the plants and the landowner had a right of appeal from that
    determination. Id.
    21
    simply did not contemplate a situation where a property owner designed
    and performed his own repairs and then filed suit against the board.
    The structure of the appeal provision has not changed.        In the
    current Code, the appeal provision immediately follows the provisions
    relating to the condemnation, assessment, and levying of taxes on land
    within the district.      See generally Iowa Code §§ 468.1–.82 (2009).    A
    provision allowing suits for the repayment of private money spent outside
    the statutory scheme has not been added. Allowing the appeal in this
    case would effectively overturn the cases which hold the remedy for the
    board’s inaction is mandamus. If an appeal can be brought when the
    board denies a claim for reimbursement, then rather than seek
    mandamus, a private party would simply make repairs however he or she
    sees fit, ask the board for reimbursement, and file suit when that
    reimbursement is denied. This process will effectively remove decisions
    about     the   repair,    reconstruction   and   rebuilding   of   drainage
    improvements from the hands of the board, which is the body assigned
    to make such decisions. Private parties would simply be free to make
    their own decisions regarding the nature, extent, and method of repair
    and then force the board—and thus the landowners in the district—to
    pay for those repairs. This is not the system the legislature devised, and
    we do not believe the legislature intended the appeal provision to be used
    in this manner. We reiterate the point made in our prior cases: when a
    suit is “based upon the failure of the Board to act rather than upon any
    affirmative action, . . . the provisions for appeal [are] not applicable.”
    Wise, 242 Iowa at 875, 48 N.W.2d at 249.
    V. Disposition.
    Under the statutory scheme enacted by the legislature, the Board
    has the duty to keep improvements in repair, but it also has the
    22
    discretion to decide how it will fulfill that duty. CCP’s suit essentially
    asks us to remove the Board’s discretion while leaving its responsibilities
    intact. This is not the way the chapter operates. Suits against drainage
    districts “have been allowed only to compel, complete, or correct the
    performance of a duty or the exercise of a power by those acting on
    behalf of a drainage district.” Fisher, 369 N.W.2d at 429. Because the
    law does not permit CCP to bring this suit, the district court properly
    dismissed the action, albeit on a different basis. Accordingly, we vacate
    the decision of the court of appeals and affirm the district court’s
    dismissal of CCP’s petition.
    DECISION OF COURT OF APPEALS VACATED; DISTRICT
    COURT     JUDGMENT       AFFIRMED,       AND   CASE    REMANDED       FOR
    DISMISSAL.
    All justices concur except Mansfield, J., who takes no part.