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In Re Petition of Commissioners

OPINION FILED FEBRUARY 5, 1985.

IN RE PETITION OF COMMISSIONERS OF SNY ISLAND LEVEE DRAINAGE DISTRICT (COMMISSIONERS OF SNY ISLAND LEVEE DRAINAGE DISTRICT IN THE COUNTIES OF PIKE, ADAMS AND CALHOUN, PETITIONERS-APPELLEES,

v.

LARRY UTTERBACK ET AL., OBJECTORS-APPELLANTS; HUGH H. MCNARY ET AL., INTERVENORS).



Appeal from the Circuit Court of Pike County; the Hon. Alfred L. Pezman, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 11, 1985.

A drainage matter.

A proposed modification to Pigeon Creek Reservoir — objected to.

The trial judge found the modification "advisable."

We affirm.

BACKGROUND

The Sny Island Levee Drainage District of the counties of Pike, Adams, and Calhoun contains 112,397 acres. The District extends from the north in Adams County to the south in Calhoun County and runs along the Mississippi River. It diverts five major creeks to the Mississippi River through a series of levees and pumping stations which involve eight pumps with a total pumping capacity of 1 million gallons per minute. The District has 14 separate reservoirs, only one of which — the Pigeon Creek Reservoir — is involved in this appeal.

Pump Station No. 1 serves 38,000 acres within the District and 80,000 acres of total watershed. Of the 38,000 acres within the District served by Pump Station No. 1, only 18,000 are affected by the Pigeon Creek Reservoir. At Pump Station No. 1, there are two pumps, each with a 450 cubic feet per second (cfs) capacity. The original design plan called for 1,100 cfs capacity, but modifications replaced the need for 200 cfs. The United States Army Corps of Engineers designed the Pigeon Creek Reservoir to last 25 years, after which rehabilitation of the levees was contemplated. Such rehabilitation was reflected in what is known as Design Plan No. 3, which was filed with the county clerk after it was proposed by the Army Corps of Engineers and incorporated by the District. The Corps designed the reservoir to have water-holding capacity of 4,800 acre/feet, a discharge capacity of 450 cfs, and capacity to receive 2,100 acre/feet of silt. The silt was to be deposited over the 25-year design life of the reservoir. And if silt was deposited as estimated, the levees would have to be raised or rehabilitated after the 25-year design life. The levee surrounding Pigeon Creek Reservoir was designed to be 475.3 feet above mean sea level (elevation 475.3), and the emergency spillway elevation was to have been 472.3 feet elevation. The spillway was placed where it was felt minimum damage would occur if the reservoir was ever overtopped.

The reservoir was constructed in 1962 for the primary purpose of storing water, controlling flooding, and preventing silt from going into the Sny — which is a drainage ditch that runs along the north-south route of the entire District. The reservoir was designed to hold water as it ran off hillsides in the eastern portion of the District. At the time of its design, the Corps of Engineers predicted that only once in 10 years would ponding south of Pigeon Creek Reservoir reach a maximum elevation of 453. Ponding over this level causes flooding of lands around Pump Station No. 1. Evidence submitted at trial showed that there were 10 interior floods above elevation 453 between 1966 and 1981.

In response to the problem of interior flooding, the District undertook a study of the entire system in an effort to determine how to alleviate the problem. The study was undertaken in 1975 and resulted in the listing of several reasons for the interior flooding as well as some suggested cures. The reasons for the flooding included an increased percentage of runoff from rains, increased seepage (water which flows through the ground under a levee) from the Mississippi River, and increased static head (the pressure exerted by a larger volume of water which is held next to a smaller volume) from the Mississippi River which reduces pumping capacity. The suggested cures included increasing the pumping capacity of Pump Station No. 1, which would have cost each landowner approximately $90 per acre, plus other suggested modifications at the pump station, including flaring the pipes. The 1975 study made no recommendation concerning restricting the outlet from Pigeon Creek Reservoir.

In a supplementary report prepared in 1982, the District's engineer recommended, among other things, modification of Pigeon Creek Reservoir, as well as modification of other settling basins in the District, in an effort to reduce the onslaught of water which occurred immediately after a heavy rainfall. As a result of the subsequent study, a modification was proposed which is the subject of this appeal.

The modification proposed was that a wall would be constructed around the current mechanical outlet. The wall would be built to an elevation of 465 and in the wall would be installed a single 54-inch outlet. The modification would result in a single exit through which the water would flow, rather than the two 54-inch outlets which now exist. If the water ever reached an elevation of 465, the additional stored waters would go over the top of the new wall into what would then be a drop box and would then be discharged through both 54-inch outlets. It was admitted at trial that the modification would extend the time to empty the reservoir from 9.67 days (the present emptying rate) to 18.48 days.

Upon filing the petition which would authorize the suggested modification, the drainage district was met with petitions of the objectors who are the appellants in this appeal. The objectors argued variously that: the modification was not advisable, the modification was precluded by language in deeds which were held by persons who had purchased land in the reservoir, and the modification could not be undertaken until the ...


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