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Magner v. Brinkman

Supreme Court of South Dakota

July 13, 2016

2016 S.D. 50
v.
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

         APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA THE HONORABLE MARK BARNETT JUDGE

          BRAD SCHREIBER of The Schreiber Law Firm, Prof. LLC Pierre, South Dakota Attorneys for appellees.

          JAMES E. CARLON Pierre, South Dakota Attorney for appellants.

          GILBERTSON, Chief Justice

         [¶1.] 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 remand.

         Facts and Procedural History

         [¶2.] 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.

         [¶3.] 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, [1] 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 dirt.

         [¶4.] 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."

         [¶5.] 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.

         [¶6.] 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 December 17.

         [¶7.] 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.

         [¶8.] Defendants appeal, raising the following issues:

1. Whether the circuit court erred by denying Defendants' requests for judgment as a matter of law.[2]
2. Whether the circuit court erred in granting the injunction.

         Analysis and Decision

         [¶9.] 1. Whether the circuit court erred by denying Defendants' requests for judgment as a matter of law.

         [¶10.] 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 ...


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