APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT LAKE COUNTY, SOUTH DAKOTA, HONORABLE TIM D. TUCKER Judge.
The opinion of the court was delivered by: Zinter, Justice
[¶1.] Alvine Family Limited Partnership (Alvine) sued a neighboring landowner and his tenant for, inter alia, negligence, nuisance, and trespass. Alvine alleged that manure from the tenant's cattle had entered Alvine's land, causing aquatic plant growth and a fish kill in two stock dams. At the close of the evidence, Alvine moved for judgment as a matter of law on his claim for trespass. The circuit court denied the motion. The jury subsequently returned a defense verdict. Alvine renewed his motion for judgment as a matter of law on the trespass claim, and the circuit court denied the motion. Alvine appeals, arguing that there was no dispute regarding an intentional physical intrusion and any disputes regarding causally related harm were irrelevant because a trespass to land occurs by physical intrusion irrespective of harm. We conclude that causally related harm became an element of trespass under the court's instructions, and because Alvine did not argue instructional error in his post-trial motions, causally related harm became an element of trespass under the law of this case. Because the dispute of fact regarding harm was resolved by the jury in favor of the defendants, we affirm without reaching Alvine's legal question regarding the elements of trespass.
Facts and Procedural History
[¶2.] The Demaray family operated a farm on the property at issue for over 100 years. They raised cattle since 1914. George Demaray lived on the farm until 1983. George had maintained a herd of up to 150 head of cattle. During the winter months, George moved the cattle from a pasture to a winter confinement area. The parties dispute whether the winter confinement area, which is the focus of this suit, has been moved or enlarged since 1955.
[¶3.] In 1986 or 1987, George rented the property to James Hagemann. Hagemann began a cattle operation called Hagemann Red Angus. In 2001, Floyd Demaray (hereinafter "Demaray") inherited the property from George, and Demaray continued to rent it to Hagemann. Over the years, Hagemann's herd grew from about 60 to 130 head of cattle. According to Hagemann, he kept his cattle in the same winter confinement area George previously used.
[¶4.] There was no waste collection system for the winter confinement area. When the ground would begin to thaw each year, Hagemann, like George's prior practice, would "scrape" the cattle manure and straw from the winter confinement area into a compost pile. The compost would remain in the confinement area until it was spread upon nearby fields where it was tilled into the soil in accordance with a National Resources Conservation Service developed manure management plan.
[¶5.] In 1973, Frank Alvine, through the Alvine Family Limited Partnership, purchased 800 acres of adjoining land. This property consisted of farmland, some federally protected wetlands, and some land in the Conservation Reserve Program. There was one stock dam on the property. Alvine built a second dam in 1978 for "wildlife propagation, fish propagation, recreation and stock watering."*fn1 Alvine also used the stock dams for family recreation, including swimming and boating. Alvine referred to the property as a "wildlife refuge," and he took steps to encourage wildlife to congregate. Herds of over 200 deer had been observed, and the stock dams attracted waterfowl as there were two federal waterfowl production areas nearby. On occasion, the stock dams had been observed to be "dark with geese."
[¶6.] The Alvine property lies directly south and downhill from the Demaray property. The two properties are divided by a gravel township road. Water naturally drains southward from the Demaray property through a culvert in the road to the Alvine property and then into inlets that allow water to flow into both stock dams. The cattle confinement area is located on an incline bordering Alvine's property. Alvine alleged that prior to Hagemann's leasing the land from the Demarays, the area bordering the two properties had no confinement area and was an open pasture. Hagemann disputed that assertion and argued that he had not moved the confinement area from the place previously used by George. Regardless of this dispute, Hagemann admitted that because of the location and elevation of the confinement area, runoff from his cattle operation drained southward to the Alvine property.
[¶7.] In 2001, Alvine experienced excessive aquatic plant growth and a fish kill in his stock dams. Alvine suspected that the problem was caused by runoff from the manure generated in Hagemann's cattle operation. In 2003, Alvine hired an expert to test the water in his stock dams. Testing of the inlets and stock dams from 2003 through 2007 revealed substantial levels of fecal coliform and ammonia. Subsequent testing revealed the presence of E-coli and highly elevated levels of phosphorus.
[¶8.] Alvine retained hydrologist, Tim Kenyon, and limnologist, Dick Osgood. Kenyon opined that runoff from the cattle confinement area was entering Alvine's property. Kenyon testified that when he was on the site, he saw fecal matter flowing into the inlets. Similarly, Osgood opined that Hagemann's cattle operation was the source of fecal coliform, phosphorus, and ammonia in Alvine's stock dams. Alvine's experts further opined that elevated phosphorus levels were causing the weed growth in the stock dams, which resulted in the fish kill. Alvine's experts acknowledged, however, that (1) Alvine himself had collected nearly all of the samples, (2) no baseline testing of the water occurred before 2003, and (3) there had been no attempts to calculate what portion of any pollutants came from other agricultural sources within the watershed. Further, Alvine's experts did not provide any benchmark levels for fecal coliform, phosphorus, or ammonia, and they provided no comparative data for other bodies of water in the area.
[¶9.] Alvine contacted Demaray in July 2004 after receiving some of the results of the testing. Alvine requested Demaray to install a waste containment lagoon, but Damaray refused. Although Demaray did install two large "buffer strips" on each side of the winter confinement area to divert runoff, Alvine contended the buffer strips were ineffective.
[¶10.] Alvine commenced suit in June 2007.*fn2 A jury trial was conducted in March 2009. The defense focused on questions whether other upstream landowners could have been the source of the pollutants, whether Hagemann "intentionally" trespassed, and whether Alvine's stock dams incurred any significant harm as a result of Hagemann's activities. Hagemann also contended that Alvine's "wildlife refuge," specifically the large concentrations of geese and deer, were a contributing cause of Alvine's problem.
[¶11.] The defendants retained expert Mike Meyer, an environmental consultant and hydrogeologist. Meyer opined that open-water data was the best indicator of pollution harm to a body of water. He noted that an open-water sample taken near geese on Alvine's stock dam showed a fecal coliform reading of 1260, while an open-water sample taken only 50 feet away showed a reading of 2. Meyer also compared the results of Alvine's and Meyer's test samples with published data for waters throughout the State. Meyer opined that the comparison showed the water quality in Alvine's stock dams was "very good" and "better than a number of the lakes in South Dakota." For example, the ...