ROBERT RUMPZA, NANCY RUMPZA and ZUBKE BROTHERS, LLC, Plaintiffs and Appellees,
DAVID ZUBKE and MARILYN ZUBKE, Defendants and Appellants.
CONSIDERED ON BRIEFS ON APRIL 24, 2017
FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT DAY
COUNTY, SOUTH DAKOTA THE HONORABLE JON S. FLEMMER Judge
RASMUSSEN of Siegel, Barnett and Schutz, LLP Aberdeen, South
Dakota Attorneys for plaintiffs and appellees.
H. HIEB ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck
& Hieb, LLP Aberdeen, South Dakota Attorneys for
defendants and appellants.
GILBERTSON, CHIEF JUSTICE.
Robert and Nancy Rumpza and Zubke Brothers LLC (Brothers)
sued David and Marilyn Zubke for allegedly changing the
natural flow characteristics of water draining from the
Zubkes' property to the Rumpzas' and Brothers'
properties. After a court trial, the circuit court granted an
injunction against the Zubkes and awarded damages to the
Rumpzas and Brothers. The Zubkes appeal. We affirm the
injunction and Brothers' damages award. We reverse the
Rumpzas' damages award.
and Procedural History
This case involves drainage issues between adjoining
landowners in Day County. The Zubkes own the Northwest
Quarter of Section 13, Township 120 North, Range 54 West. To
the west of the Zubkes, the Rumpzas own the Northeast Quarter
of Section 14, Township 120 North, Range 54 West. And to the
west of the Rumpzas, Brothers owns the Northwest Quarter of
Section 14, Township 120 North, Range 54 West. The
Zubkes' and Rumpzas' properties are separated by Day
County Road 1. The Rumpzas' and Brothers' properties
The Zubkes' property is dominant, historically draining
onto the Rumpzas' property in two areas. In the southwest
corner of the Zubkes' property, water drains through a
culvert located below Road 1 (Drainage Area 1), flowing
through the Rumpzas' property and onto Brothers'
property. However, the culvert sits about 15 inches higher
than the lowest point in the southwest corner of the
Zubkes' property. Because of the height of this culvert,
water collects in the area. Another culvert permits water to
drain from the northwest corner of the Zubkes' property
(Drainage Area 2) into a closed-basin slough on the
In 2012 and 2013, the Zubkes modified the established flow
characteristics of Drainage Areas 1 and 2 in several ways.
First, they constructed a dam and used a portable pump to
drain the southwest corner of their property. Next, they dug
a ten-foot-deep pit near the dam and placed a pump inside.
When the water level rises to a certain point, the pump
engages, and the contents of the pit are pumped over the dam,
through the culvert, and onto the Rumpzas' property. The
Zubkes also installed two areas of drain tile: one each in
the southwest and northwest corners (Tile Area 1 and Tile
Area 2, respectively) of their property. Tile Area 2 causes
water that would normally drain to the west through the
northern culvert to instead flow south to the pit and pump.
Tile Area 1 facilitates draining areas that previously had
remained wet. The cumulative effect of these modifications is
an increase in water flow through Drainage Area 1.
The Rumpzas and Brothers commenced this suit on July 24,
2013, seeking an injunction and damages. They argued that the
Zubkes' modifications had increased the amount of
drainage onto their properties and extended the time that
water lingers in the established watercourse. As a result,
the Rumpzas and Brothers claimed they had been unable to
plant and harvest crops in areas they had previously been
able to farm. The Zubkes responded that they were simply
compensating for an obstruction in the watercourse on the
Rumpzas' property. After a court trial on December 14,
2015, the court returned judgment for the Rumpzas and
Brothers. The court entered an injunction prohibiting the
Zubkes from operating the pump installed in Drainage Area 1
and requiring the Zubkes to immediately remove all drain tile
from Tile Area 2. The court also awarded damages to the
Rumpzas and Brothers in the total amounts of $12,
465 and $16, 173,  respectively.
The Zubkes appeal, raising two issues:
1. Whether the circuit court erred in granting the
2. Whether there was sufficient evidence to calculate
"[T]he question whether an injunction is statutorily
authorized is reviewed de novo, and [a] court's
subsequent decision to grant or deny [an] injunction is
reviewed for an abuse of discretion." Magner v.
Brinkman, 2016 S.D. 50, ¶ 19, 883 N.W.2d 74, 83. An
abuse of discretion is "a choice outside the range of
permissible choices[.]" MacKaben v. MacKaben,
2015 S.D. 86, ¶ 9, 871 N.W.2d 617, 622 (quoting
Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855
N.W.2d 846, 850). We will accept the circuit court's
factual findings unless they are clearly erroneous.
1. Whether the circuit court erred in granting the
The Zubkes argue the circuit court erred in concluding the
Zubkes caused damage to the Rumpzas and Brothers. The Zubkes
assert the natural flow of water has been obstructed by silt
in the watercourse on the Rumpzas' property. According to
the Zubkes, their pump system is simply
"'lifting' the water to a level that allows it
to go over the high point on the Rumpzas' land and
through the natural drainage way on the servient properties.
It is restoring the drainage to what it would be if the
unnatural obstructions were not present." The Zubkes
further contend that the Rumpzas' and Brothers'
damages "relate exclusively to damage to crops that were
planted entirely within the natural drainage way that runs
through" their properties. Finally, the Zubkes contend
the "hardship to be suffered by [the Zubkes if the
injunction is affirmed] is clearly disproportionate to the
benefit to be gained by the servient landowners[.]"
In South Dakota, "[t]he owner of a dominant estate is
permitted to drain water onto a servient estate 'by means
of a natural water course or established water
course.'" Magner, 2016 S.D. 50, ¶ 15,
883 N.W.2d at 81 (quoting SDCL 46A-10A-20(4)). The
"rules regarding rural surface water drainage have been
codified in SDCL 46A-10A-20." Hendrickson v.
Wagners, Inc., 1999 S.D. 74, ¶ 11, 598 N.W.2d 507,
510. That statute states, in part:
[A]ny rural land which drains onto other rural land has a
right to continue such drainage if:
(1)The land receiving the drainage remains rural in
(2)The land being drained is used in a reasonable manner;
(3)The drainage creates no unreasonable hardship or injury to
the owner of the land ...