2016 S.D. 50
GLENN J. BRINKMAN and SUSAN BRINKMAN d/b/a BRINKMAN ARABIAN STABLES, jointly and severally, Defendants and Appellants. MICHAEL A. MAGNER and DENISE W. WILLIAMS, Plaintiffs and Appellees,
CONSIDERED ON BRIEFS ON FEBRUARY 16, 2016
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES
COUNTY, SOUTH DAKOTA THE HONORABLE MARK BARNETT JUDGE
SCHREIBER of The Schreiber Law Firm, Prof. LLC Pierre, South
Dakota Attorneys for appellees.
E. CARLON Pierre, South Dakota Attorney for appellants.
GILBERTSON, Chief Justice
Michael A. Magner and Denise W. Williams (Plaintiffs) sued
Glenn J. and Susan Brinkman (Defendants) for allegedly
causing an increased amount of water drainage on
Plaintiffs' land by altering the natural flow of water
across Defendants' land. Defendants appeal the circuit
court's judgment entered after a jury trial, arguing that
they were entitled to judgment as a matter of law because
Plaintiffs failed to offer proof that Defendants caused the
increase in drainage. Defendants also argue that the court
abused its discretion in granting Plaintiffs a permanent
injunction ordering Defendants to pay additional money for
repairs and preventive landscaping. We affirm the court's
denial of Defendants' requests for judgment as a matter
of law. We reverse the court's grant of injunction and
and Procedural History
Defendants purchased a 160-acre tract northeast of Pierre in
2004. Plaintiffs purchased their home, which is located on a
40-acre tract bordering Defendants' property, and moved
in on January 4, 2007. The properties are coterminous on
their western borders, where they are bounded by a county
road that falls on a section line. There are three areas
between the two properties that naturally pool water: one in
the northeastern area of Defendants' property; one at the
northwestern corner of Defendants' property; and a pond
near the east–west center of Plaintiffs' property,
near its northern border with Defendants' property. The
area extending northwest from Plaintiffs' pond to the
southwestern corner of Defendants' property is a
designated wetland. Plaintiffs' property is lower in
elevation than Defendants', and water naturally flows
from Defendants' property onto Plaintiffs' property.
This lawsuit centers on the drainage of water from
Defendants' property onto Plaintiffs' property. In
particular, the trial focused on three occurrences of
drainage that led to the current controversy. First, on June
12, 2007, the two properties received rainfall in excess of
three inches. As a result of this rainfall, a significant
amount of water pooled near Defendants' barn and corrals.
However, water did not accumulate anywhere on Plaintiffs'
property, and at that point, Plaintiffs' pond was empty.
Shortly thereafter, Defendants dug a trench leading from the
pool to the border with Plaintiffs' property in an
attempt to divert this water onto Plaintiffs' land.
Although the parties dispute the reason for and timing of
this trench,  Plaintiffs
initially permitted Defendants to drain water into
Plaintiffs' pond but later withdrew that consent.
Defendants complied by filling in the end of the trench with
On June 3, 2008, the same area again received rainfall in
excess of three inches. Initially, Plaintiffs' pond was
damp but did not have any standing water. Defendants'
property, on the other hand, had standing water similar to
that in June 2007. Defendants dug another trench to again
divert water to the southern slope of their property, which
in turn flowed onto Plaintiffs' property. This diversion
contributed to filling Plaintiffs' pond and flooding the
northwest portion of their property. Plaintiffs sent a
certified letter to Defendants informing them that Plaintiffs
were aware of the second trench. Plaintiffs also contacted
the Natural Resources Conservation Service (NRCS), an agency
of the United States Department of Agriculture. Lowell
Noeske, a district conservationist with the NRCS, performed
an on-site review on June 16. In a report dated June 18, he
stated to Plaintiffs: "There was some disturbed earth
where you indicated a ditch had been excavated. It is my
determination that the shape of the land on the ground today
is near natural condition and that no alteration currently
exists on the wet area in question."
The third drainage event occurred in 2010. The county road on
the western border of the parties' properties had fallen
into disrepair. The road had numerous low points that
collected water, including the area at the northwestern
corner of Defendants' property. Because the county lacked
the funds to repair the road, Defendants sought to effect the
repair themselves. Upon discovering that rebuilding the road
to county specifications would be cost prohibitive,
Defendants instead decided to build a private road just
inside the western boundary of their property, running
parallel to the county road. Defendants installed a culvert
in the southern half of the private road that permits water
to cross under and drain onto the southern slope of
Defendants' property, which is part of the shared wetland
area that includes Plaintiffs' pond. After Defendants
built their private road, additional rainfall and melting
snow caused a significant amount of water to accumulate in
the northwestern portion of Plaintiffs' property.
As a result of these drainage events, Plaintiffs were unable
to pasture their intended number of cattle for several years.
They filed suit on November 22, 2011, alleging public and
private nuisance. Plaintiffs sought $50, 000 in damages for
lost business income, $5, 000 in damages to remove
accumulated silt and dirt from their pond, and a permanent
injunction requiring Defendants to reverse any alterations
they made to the drainage pattern. A trial was held on
November 14 and 15, 2013. At the close of Plaintiffs'
case, Defendants filed a motion requesting judgment as a
matter of law, and the circuit court denied the motion. The
jury awarded Plaintiffs $9, 950 in damages, and Defendants
filed a motion renewing their request for judgment as a
matter of law. The court denied the motion, and Defendants
voluntarily satisfied the judgment. The jury was not provided
special interrogatories. The court held a hearing on
Plaintiffs' request for injunctive relief on August 4,
2014. However, because Plaintiffs failed to provide evidence
regarding the cost that Defendants would incur in moving
their private road, the court continued the hearing until
At the subsequent hearing, Plaintiffs abandoned their request
for an injunction ordering Defendants to move their road and
instead asked the court to order Defendants to pay for
preventive and corrective landscaping on Plaintiffs'
property. The plan proposed by Plaintiffs involved removing a
substantial amount of dirt from their pond (both deepening
and widening it) and using the dirt to raise the elevation of
their property's northwestern area in order to divert the
water entering their property to the improved-capacity pond,
preventing the water from pooling in the wetland area.
Defendants presented testimony from Scott Schweitzer, an
engineer and hydrologist, who opined that Defendants had not
made any alterations to their property that caused any change
in the flow pattern or volume of water draining from
Defendants' to Plaintiffs' property. Even so, the
circuit court reasoned that the jury's verdict in favor
of Plaintiffs established that Defendants had altered their
property in some fashion that caused increased drainage. The
court granted the injunction and ordered Defendants to pay an
additional $28, 936 to Plaintiffs.
Defendants appeal, raising the following issues:
1. Whether the circuit court erred by denying Defendants'
requests for judgment as a matter of law.
2. Whether the circuit court erred in granting the
1. Whether the circuit court erred by denying
Defendants' requests for judgment as a matter of
Defendants argue that Plaintiffs "failed to produce any
evidence on an essential element of a water diversion
claim" and that Defendants were therefore entitled to
judgment as a matter of law. Defendants contend "[t]here
is no competent evidence offered by [Plaintiffs] to indicate
that the water on [their] property is a result of a diversion
implemented by [Defendants]." Additionally, Defendants
point to the expert testimony of Noeske and Schweitzer, who
both opined that there were no man-made alterations affecting
the drainage from Defendants' property. Thus, Defendants
conclude that Plaintiffs have "produced no ...