AUGUST 25, 2004

3:00 P.M.




MEMBERS PRESENT:†††††††††††††††††††††††††††††††††††††††††††††† Phillip H. Baxter, President

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Carl Jay Conner, Vice-President

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Don Williams, Secretary

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Rod Madden, Deputy Surveyor

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Don Ashley, Attorney for Board





ALSO PRESENT:†††††††††††††††††††††††††††††††††††††††††††††††††††††† No audience present



President Baxter brought the August 25, 2004 meeting to order.





Commissioner Williams made a motion to approve the minutes of August 11, 2004, 2nd by Commissioner Conner. President Baxter asked for any discussion. Motion carried 3-0.




Orth Petition


President Baxter asked Rod if he had a report ready for this matter?


Rod explained that Karan was in Court on this matter today and apparently the Orth-Schmitt dispute has become a legal matter and as a part of that dispute, Mr. Orth has submitted a petition for removal of obstruction, he corrected himself and stated that the Surveyor has submitted the form. He stated he was presenting the petition to the Board and asked Mr. Ashley how to proceed.


Mr. Ashley, Attorney for the Board stated to let the record show that the Surveyor, Karan Barnhill has inspected the property involved in the petition and made an investigation and has filed a written report indicating that there are obstructions existing in the Natural Waterway referred to in the petition. He explained that the next step would be for the Board to assign this matter for a Hearing and the Hearing canít be less than 30 days nor more than 90 days from date.


Commissioner Williams asked if that was from todays date?


Mr. Ashley answered that the Statute states from the date of the filing of the Petition, which was August 23, 2004.


President Baxter asked if this should be held at a regular Drainage Board Meeting?


Commissioner Williams asked if it should be held at a special meeting?


Mr. Ashley answered that it can be held at a regular meeting and it would also be easier for everyone involved.


There was discussion on the date for the Hearing.


Commissioner Conner asked if the Boardís decision would be final in this situation?


Mr. Ashley answered yes, that the Board will hear evidence from the Surveyor and the land owners, the Orths and Schmitts.


Commissioner Conner asked if our decision is binding, what are the options after the Drainage Board, the court system?


Mr. Ashley answered that this Board determines whether or not the obstruction was intentionally place or unintentionally placed and that makes a difference as to who has to assume responsibility for removing the obstruction. He further explained that if it is deemed an intentional obstruction, then the person who caused the obstruction is obligated to remove it at their expense and if they do not do so then the Board can remove it and charge the responsible person. He also added that this may also take action to enforce that order through the court system.


Commissioner Conner stated that the individuals that are involved in this situation donít have any relief through the Court system based upon our decision.


Mr. Ashley answered that anything is subject to judicial review and added that is why we want to make a good record of what we do and keep a record of the evidence as presented here in these meetings, then based upon that solely the Board determines whether the obstruction was intentional or unintentional.


Commissioner Conner asked the day that we listen to the input from the parties involved, do we have to give a decision that day?


Mr. Ashley answered that he assumes it could be taken under advisement.


Commissioner Conner stated he had not been involved in anything of this sort and was not sure how it was to be handled.

Mr. Ashley added that the Board has never gone this far before with this type of situation and this is a relatively new statutory procedure.


President Baxter asked Mr. Ashley that with this not being a legal drain, how do we proceed?


Mr. Ashley answered that in 1996 Legislation gave the authority to Drainage Boards to investigate alleged obstructions in natural waterways whether or not they were regulated drains under the jurisdiction of the Drainage Board. He added that this was something he hated to see happen as he thinks the Drainage Board has their hands full handling regulated drains and the Board has always tried to avoid getting involved in this. He stated the Boards always felt that if it becomes widely known then the Drainage Board will have to take action into every little drainage problem. He added that the agenda will be so full that it will be hard to take care of matters that are part of our jurisdiction.


President Baxter agrees with Mr. Ashley and thinks that matters of this sort should be a civil matter as he sees this all the time in his line of work.


Mr. Ashley stated that the Drainage Board should avoid having to go through this procedure only because he thinks the Board will be deluged with these cases.


Commissioner Conner asked if there was any way to recommend bypassing this matter?


Mr. Ashley stated that he understood that there is litigation between these parties at this time and some sort of court hearing today, so possibly this may be resolved through Court.


Commissioner Williams stated that a date still has to be set?


Rod Madden asked if a man made ditch was considered a natural water course and the reason he asked is there is litigation today and he has talked to Mr. Orth and part of the case involved a water course, but the other part involved a man made ditch, so is there a distinction between the two?


Commissioner Williams stated that he thought the only thing they were considering was the watershed that was filled with trees and filled in on each end?


Rod answered the man made ditch has been filled with trees.


Commissioner Williams stated he thought that was a natural waterway and you are saying that it is man made?


Rod stated that was his question, is there a difference between a natural waterway and a man made ditch?


Mr. Ashley (reading) definition according to State Statute ďnatural surface watercourse means-an area of the surface of the ground over which water from melting snow occasionally and temporarily flows in a definable direction.


President Baxter states it really doesnít answer it at all does it?


Rod answered that he thinks he would interpret it as that it would include the ditch, but that would be his understanding of it.


President Baxter stated that with there being a court hearing he is wondering if the Board should not set the date for the hearing as late as possible.


Commissioner Conner stated that he would agree to that.


Commissioner Williams was checking the calendar and stated that he thought it could be held on the October 13th meeting.


President Baxter asked if he meant November, as October 13th was actually less than 60 days.


Commissioner Williams stated then that would probably be the November 10th meeting.


Commissioner Conner made a motion to set the date of November 10, 2004 for the hearing of the Orth Petition, 2nd by Commissioner Williams. Motion carried 3-0.




President Baxter requested a motion to pay claims in the amount of $620.00.


Commissioner Conner made a motion to pay claims in the amount of $620.00, 2nd by Commissioner Williams. Motion carried 3-0.




Commissioner Conner asked Rod where the ditch that the Board is petitioning to become a legal drain initially start, is it going to be above St. Johnís Road or below it?


Rod asked if he was talking about the North end? He stated that he had talked to Karan about this awhile back and he believes that she wants to go above St. Johnís Road so that it would go the length of the ditch.


Commissioner Conner asked Rod if he would check on that as Mr. Raymond Orth had talked to him on the phone and he says that he basically lives at the intersection of Elberfeld Road and St. Johnís Road. He added that Mr. Orth did not know if this would be crossing his property?


President Baxter asked if there was anything more to come before this meeting?


Commissioner Williams made a motion to adjourn, 2nd by Commissioner Conner. Motion carried 3-0.