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Case No. 17-1192

Dwayne Sunberg and Patricia Sunberg
v.
Audubon County, Iowa, Audubon County Board of Supervisors, and Audubon County Soil and Water Commission

Appellants

Dwayne Sunberg and Patricia Sunberg

Appellees

Audubon County, Iowa, Audubon County Board of Supervisors, and Audubon County Soil and Water Commission

Attorneys for Appellants

Jeremy B. Hahn and Deborah L. Petersen
James C. Webering

Attorneys for Appellees

Robert M. Livingston
David L. Dorff, Assistant Attorney General

Court of Appeals

Court of Appeals Opinion

Opinion Number:
17-1192
Date Published:
Nov 21, 2018
Summary

            Appeal from the Iowa District Court for Audubon County, Greg W. Steensland, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (12 pages)

            Dwayne and Patricia Sunberg initiated a lawsuit against Audubon County, the Audubon County Board of Supervisors, and the Audubon County Soil and Water Commission (collectively, “the defendants”) seeking damages for the defendants’ alleged failure to properly maintain a soil and water conservation structure located on the Sunbergs’ property.  On appeal, the Sunbergs claim the defendants have a statutory, contractual, and common law duty to maintain the structure by removing accumulated silt or taking action to reduce the rate the silt would accumulate.  They assert the district court was wrong to conclude the defendants did not owe a duty to the Sunbergs to maintain the structure or, alternatively, even if the defendants did owe a duty to maintain, their inaction allowing the accumulation of silt was not a breach of the duty to maintain.  OPINION HOLDS: The defendants have neither a statutory, common law, nor contractual duty to maintain structure 28-3.  Even if they did have a contractual duty to maintain the structure, that duty would not require them to remove accumulated silt or take action to reduce the rate the silt would accumulate, as the structure was designed to accumulate silt and is functioning properly.  We affirm the district court’s dismissal of the Sunbergs’ lawsuit.

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