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Robert Brandt v. County of Pennington

February 27, 2013

ROBERT BRANDT,
PLAINTIFF AND APPELLANT,
v.
COUNTY OF PENNINGTON,
DEFENDANT AND APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT A. MANDEL Judge

The opinion of the court was delivered by: Severson, Justice.

CONSIDERED ON BRIEFS ON JANUARY 8, 2013

[¶1.] In 1994, Robert Brandt granted a drainage easement to Pennington County on land he owned in the Sila Subdivision. In 1996, the County repaired a section of Clarkson Road, which abutted Brandt's land. After the road repair, silt began to accumulate near the bottom of the canyon on part of Brandt's land. Brandt provided written notice to the County in 2009 for damages. He filed suit for nuisance, constructive taking, trespass, and unlawful taking in late 2010. The County moved for summary judgment. After an April 2012 hearing, the trial court granted the motion after determining that there was no continuing tort and the statute of limitations had run. Brandt appeals the summary judgment and argues that the County's action constitutes a continuing tort. We affirm the trial court's decision.

BACKGROUND

[¶2.] In August 1994, Robert Brandt purchased 57 acres in the Sila Subdivision in Pennington County. Brandt subdivided the property into three lots and eventually built a home on Lot 2. The plat for the property was filed with the Pennington County Register of Deeds in October 1994. The plat included a description of a 200-foot wide drainage easement extending across the property, including the canyon area of Lot 2. The drainage easement did not exist on the property prior to the 1994 plat filed by Brandt.

[¶3.] In 1996, the County repaired a section of Clarkson Road, which abuts Lot 3 in the Sila Subdivision. After the road repair, Brandt testified that silt began accumulating in Lot 2's canyon within the drainage easement. The silt accumulated sporadically in the canyon after heavy runoff from melting snow or rainstorms in the spring and summer. Brandt testified that the silt is four to five inches deep in certain areas at the bottom of the canyon.

[¶4.] Periodically, the County attempted to control the silt flow. Heine Junge, Pennington County Highway Superintendent, testified that the County used rock dams and hay bales in the ditch near Clarkson Road to stop the flow of silt into the canyon.

[¶5.] On May 13, 2009, Brandt provided written notice to the Pennington County Auditor for damages to Lot 2. He stated that his property was damaged by runoff from the hillside following the County's repair of Clarkson Road in 1996. In late 2010, Brandt sued the County under the theories of nuisance, constructive taking, trespass, and unlawful taking. The County raised affirmative defenses that a drainage easement existed across Brandt's property where the runoff drains and that the statute of limitations had run.

[¶6.] The County moved for summary judgment and the trial court held a hearing on April 19, 2012. The trial court granted summary judgment after determining that there was no continuing tort and the statute of limitations had run. Brandt appeals the summary judgment and argues that the County's action constitutes a continuing tort.

STANDARD OF REVIEW

[¶7.] The standard of review for summary judgment is well settled:

We must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Jacobson v. Leisinger, 2008 S.D. 19, ΒΆ 24, 746 N.W.2d 739, 745 (quoting Cooper v. James, 2001 S.D. 59, ...


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